Opinion
NO. 2015 KA 0064
11-09-2015
STATE OF LOUISIANA v. ROBERT STANLEY LANE, JR.
WARREN MONTGOMERY1 DISTRICT ATTORNEY COVINGTON, LA AND KATHRYN W. LANDRY BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA RACHEL I. CONNER NEW ORLEANS, LA ATTORNEY FOR DEFENDANT-APPELLANT ROBERT STANLEY LANE, JR.
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana
Trial Court No. 540968
Honorable William J. Knight, Judge
WARREN MONTGOMERY
DISTRICT ATTORNEY
COVINGTON, LA
AND
KATHRYN W. LANDRY
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
RACHEL I. CONNER
NEW ORLEANS, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
ROBERT STANLEY LANE, JR.
BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. PETTIGREW, J.
Walter P. Reed was the District Attorney at all relevant times prior to the appeal.
The defendant, Robert Stanley Lane, Jr., was charged by bill of information with molestation of a juvenile (of a person under the age of 13), a violation of La. R.S. 14:81.2. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to sixty years imprisonment at hard labor with the first twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating seven assignments of error. We affirm the conviction and sentence.
FACTS
Sometime between the beginning of March and the end of June 2010, seven-year-old B.L. spent the night at the home of the defendant, her paternal grandfather, who lived at The Mansions Apartments on Spartan Drive in St. Tammany Parish. In the past, B.L. had spent the night at the defendant's home with other family members present, but this was the first (and only) time she had slept there alone, with no one besides the defendant present. During the evening, B.L. and the defendant were watching television. B.L., wearing a nightgown and underwear, was lying on the couch. The defendant was sitting in a chair. The defendant got up from his chair, approached B.L., and stood over her. When B.L. asked why he was not watching television, the defendant reached his hand under B.L.'s nightgown and underwear and placed it on her "bottom". The defendant then walked toward his bedroom and told B.L. to come to bed with him. B.L. became frightened and went to the bathroom and locked both of the doors. She stayed in the bathroom, remained awake the entire night, and waited until the next morning to come out when her father picked her up.
The victim is referred to by her initials. See La. R.S. 46:1844(W).
Approximately two years later, when the defendant was in jail on a different matter, B.L., for the first time, disclosed the incident to a friend of hers. Her friend convinced her that she needed to report the incident to someone. B.L. then reported the incident to her friend's mother, and then, later, to her own father, when he returned from work. B.L. was taken by her mother to the St. Tammany Parish Sheriff's Office where she reported the incident, and she was subsequently taken to the Children's Advocacy Center (CAC), also known as the "Hope House," where she provided a video-taped statement about the "defendant touching her 'butt'." B.L. testified at trial and identified the defendant as the person who molested her.
The record reveals the friend to whom B.L. made the disclosure was the daughter of B.L.'s father's girlfriend at that time.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the State did not prove all the elements of molestation of a juvenile.
A conviction based on insufficient evidence cannot stand as it violates due process of law. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); 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). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
At the time of the commission of the offense, La. R.S. 14:81.2 provided, in pertinent part:
A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age
difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.
Thus, the prosecution had to prove each element of the crime, namely: (1) the defendant was over the age of seventeen and was more than two years older than B.L., who was under the age of 17 (in this case, under the age of 13); (2) the defendant committed a lewd or lascivious act upon, or in the presence of, B.L.; (3) the defendant had the specific intent to arouse or gratify either B.L.'s or his own sexual desires; and (4) the defendant committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. See State v. Redfearn, 44,709 (La. App. 2 Cir. 9/23/09), 22 So.3d 1078, 1086, writ denied, 2009-2206 (La. 4/9/10), 31 So.3d 381.
In his brief, the defendant asserts there was insufficient evidence to prove that his touching of B.L.'s buttock was done with the intention of arousing or gratifying the sexual desires of either person; or that such action was conducted through the use of influence by virtue of a position of control or supervision over the juvenile. The defendant cites case law in his brief, but provides no argument to support these assertions.
The evidence at trial established that the defendant did not accidentally or inadvertently touch B.L.'s buttock; it established, rather, that the defendant, after staring for some time at B.L., who was lying on the couch, approached her. He then placed his hand under the blanket B.L. had over her, moved his hand under her nightgown, and then further moved his hand beneath her underwear to touch her buttock directly. Following this, the defendant told B.L. to come sleep with him.
A lewd and lascivious act is an act that is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner. State v. Jones, 2010-0762 (La. 9/7/11), 74 So.3d 197, 200 n. 1. Specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93-1361 (La. App. 1 Cir. 5/20/94), 637 So.2d 814, 818, writ denied, 94-1563 (La. 10/28/94), 644 So.2d 649, abrogated on other grounds; State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001).
Based on the circumstances and the defendant's actions, a rational fact finder clearly could have found that the defendant's touching of B.L. was done with the intention of arousing his sexual desire. See State v. Forbes, 97-1839 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, 428 (where we found that the defendant's acts of "[T]he intrusion under the T-shirt, and touching of the breasts, and the intrusion into the victim's underpants, and touching of the area near the vagina, was sufficient to prove the essential element of the specific intent to arouse or gratify sexual desire.").
A rational fact finder also could have readily concluded that the defendant's molestation of B.L. was accomplished by the use of influence by virtue of a position of control or supervision over the juvenile. B.L. was a young child, alone, with her grandfather in his home. The defendant was clearly in a supervisory capacity regarding B.L. Moreover, B.L.'s response to being molested, of going to the bathroom and locking herself therein overnight to avoid the defendant, as well as her comment at the CAC interview, that she wanted to run when he touched her but had nowhere to go because she did not know anyone, established the extent to which he had control over her.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. 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).
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1 Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). The jury's verdict reflected the reasonable conclusion that, based on B.L.'s testimony and the CAC interview, the defendant molested his seven-year-old granddaughter. In finding the defendant guilty, the jury clearly rejected the defense theory of innocence. See Moten, 510 So.2d at 61.
After a thorough review of the record, we find the evidence supports the jury's unanimous verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of molestation of a juvenile. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court abused its discretion in denying his motion to continue the trial date. The record reveals that the court granted Mr. Lane's first motion to continue the trial date that had been set for June 16, 2014.
The defendant's second trial date was set for October 1, 2014. One day prior to trial, on September 30, defense counsel filed a motion for continuance of trial based on the absence of witness Brenda Lane, the wife of the defendant. According to the motion, Ms. Lane's brother had recently committed suicide and, as such, Ms. Lane, who lived in Mobile, Alabama, would not be able to attend trial. Defense counsel further provided in the motion that if Ms. Lane were called to testify, she would state the following:
• Brenda Lane met Robert Lane in October 2009 and they began dating. She moved in with Robert Lane to his apartment at 507 Spartan Drive #4203 ("The Mansions Apartments"), in Slidell, Louisiana in February 2010.
• Brenda Lane and Robert Lane were married in June 2010. She lived with Robert Lane in that apartment until he was incarcerated in March 2012.
• During the time that they were living together at the Mansions Apartments, Robert Lane's grand-daughter (sic) [B.L.] spent the night one time. [B.L.]'s father, Rob, dropped her off at the apartment late in the afternoon. [B.L.] and Brenda Lane went to the Dollar Store and bought some small presents. They had dinner. [B.L.] and Brenda watched TV on the couch together, while Robert Lane was in his recliner chair. Robert Lane usually went to bed early because he woke up at 4:30 a.m. for work. Robert Lane went to bed early that night.
• [B.L.] hugged him goodnight and Robert went into his and Brenda's bedroom and did not come back out.
• Brenda made up the sofa for [B.L.]. They watched a movie and talked. Brenda went to bed and [B.L.] slept on the couch.
• The next morning, Robert left for work before [B.L.] and Brenda woke up.
• The next day, Brenda took [B.L.] to Lakeside Mall. Brenda met Rob at a service station on Old Spanish Trail in Slidell and dropped [B.L.] off.
• At no time during the one time she spent the night was [B.L.] alone with Robert.
• [B.L.] did not sleep over at the apartment any other time during the time Brenda and Robert were married.
• Brenda Lane had gone to take a nap in the apartment on the afternoon of June 26, 2011 when the family was over and swimming in the pool. She was not at the pool when the little girl said that Robert Lane touched her.
On that same day (September 30, 2014), the trial court denied the written motion for continuance. On the order denying the motion, the trial court hand wrote its reasons for the denial:
Denied. The Court notes that this matter is to be tried October 1-3. While the Court does not necessarily agree that the testimony of a witness who was not present at the time of the alleged offense is critical, counsel has the opportunity to obtain the presence of her client's wife at trial, & accomodations [sic] can be made for taking her testimony out of order if needed.
Defense counsel immediately filed an expedited writ with this court, which was denied on the showing made. See State v. Lane, 2014-1434 (La. App. 1 Cir. 9/30/14) (unpublished writ action). At the same time, she filed an application for writ of review by the supreme court. The following day, October 1, 2014, which was the first day of trial, defense counsel inexplicably re-filed the same motion for continuance of trial based on the absence of witness Brenda Lane.
At a pretrial hearing, prior to voir dire, the trial court took up the matter of the absent witness. Following is the exchange between the trial court and defense counsel:
The Court: I understand your position. Next, I believe, is a motion to continue. The court has considered the motion to continue. The court has noted that this trial was predicted, or at least it originally was, to be finished October one through three. I'm more than willing to allow the witness, who I understand to be Mr. Lane's wife, to testify out of order, I have no details in the motion concerning the funeral arrangements or travel arrangements of the proposed witness, but that's a matter that the court has previously denied the motion to continue. I will allow out of turn testimony on that witness who lives only two hours from here. So.
Ms. Conner: Your Honor, if I may respond, I did object. I filed a writ to the First Circuit Court of Appeals (sic) which denied the writ. The writ is currently pending in front of the Louisiana Supreme Court. The request for a continuance concerns, and I think this may have been ambiguous. The request for a continuance concerns, and I think that this may have been ambiguous in the motion to the court. The court obviously understood that the witness was not someone who was present at the time of the allegations. This witness, Brenda Lane, was present during, during the time that [B.L.] is alleged to have slept over at Mr. Lane's apartment. She was there. She was an eyewitness to the events of that night. She is a critical witness who materially contradicts the allegations of [B.L.]. She is a friendly witness. She was in Alabama. She could have made arrangements to come to Louisiana for this trial. Her brother committed suicide on her birthday. She is not in an emotional state to be able to take the stand today.
The Court: When was her birthday?
Ms. Conner: Last week.
The Court: And where is the funeral?
Ms. Conner: I believe it was last week also. This isn't a question of a conflict about the funeral. This is a question about her emotional and mental ability, given the recency (sic) of an unexpected and horrifying death in her family, that she will not be able to take the stand today or tomorrow or the next day. If given a month, she will be able to make arrangements to come and testify to a material aspect of Mr. Lane's defense.
The Court: Motion to continue denied.
Following the denial of the motion, the prosecutor added that he wanted it on record that the venire had been drawn on September 22, 2014, and he knew that the defendant had spoken from jail to Brenda Lane several times; and never in their conversations was it mentioned that she would be a witness for him. Also, Brenda Lane had never been subpoenaed by the defense. Further along in the hearing, the prosecutor pointed out to the trial court that the State did not even know who Brenda Lane was until the day prior to trial.
In his brief, the defendant asserts that he properly moved for a continuance "based on the unexpected and sudden unavailability of a critical and material eyewitness who directly disputed the allegations of B.L." According to the defendant, the denial of the continuance prejudiced his ability to present a defense and constituted an abuse of discretion.
Louisiana Code of Criminal Procedure article 707 provides:
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Strickland, 94-0025 (La. 11/1/96), 683 So.2d 218, 229. See La. Code Crim. P. art, 712. Whether refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not grounds for reversal absent a showing of specific prejudice. State v. Roy, 496 So.2d 583, 588 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 228 (La. 1987).
Louisiana Code of Criminal Procedure article 709(A) sets forth the requirements for a motion for a continuance based on the absence of a witness:
A motion for a continuance based upon the absence of a witness shall state all of the following:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facte and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facte showing due diligence used in an effort to procure attendance of the witness.
Initially we note that the defendant's motion for continuance, filed the day before trial, was not timely filed. Defense counsel informed the trial court at the pretrial hearing that Brenda Lane's brother killed himself on Ms. Lane's birthday, which was "[l]ast week" and that she thought the funeral had been "last week" as well. It is not clear, therefore, why the motion for continuance was filed at such a late date. The untimeliness issue notwithstanding, we see no reason to disturb the trial court's ruling. The defendant has failed to show that he was prejudiced by the denial of the continuance. The trial court made clear to defense counsel that it would make accommodations for Brenda Lane to testify at any time during the trial. Ms. Lane was only several hours away in Alabama. Defense counsel insisted, however, that the issue was one of "emotional and mental ability" and that apparently it would take Ms. Lane one month before she would be able to testify.
A request by defense counsel for such an extended continuance appears to have been a dilatory tactic. As noted earlier, the defendant's first motion for continuance was granted in June 2014. However, one week prior to the instant (third) motion for continuance being filed, defense counsel filed a second motion for continuance of trial on September 23, 2014, which the trial court denied. The denial was based principally on a finding by the trial court that defense counsel was attempting to effect a delay in the proceedings. In the second motion, defense counsel specifically sought a continuance because the State intended to introduce two prior incidents involving the defendant, to prove lustful disposition, and according to the motion, both incidents "are now seriously contested and under appellate review." The motion further suggested that the defendant had recently obtained an enhanced copy of the surveillance video that captured the allegations underlying his February 15, 2012 conviction for indecent behavior with a juvenile. Defense counsel stated in the motion that the video provided "contemporaneous visual evidence which directly contradicts the allegations made in the police report and in the affidavit in support of the arrest warrant. Mr. Lane intends to file a post-conviction petition regarding the validity of his plea and this conviction imminently." Two days later (September 25, 2014), the trial court denied the motion for continuance of trial. On the order denying the motion, the trial court hand wrote its reasons for the denial:
The defendant in this matter entered a not guilty plea on 11/21/13. The matter has been set for motions [and] motions have been heard. The 1st Circuit denied writs on the 412.2 issue on 8/11/14. The defendant did not file his writ application with the Supreme Court until 9/11/14. There has been no PCR actually filed. This is a special setting cleared with all counsel. Ample time has elapsed for a proper preparation of this case. The tactics appear dilatory.
We find it significant, as well, that the prosecutor had not even heard of Brenda Lane until the day before trial. Defense counsel suggested in the pretrial hearing on the continuance motion that an account of what Ms. Lane knew, which was included in her written motion for continuance, was essentially what Ms. Lane had told the police; as such, this information would be in a police report that had never been provided to the defense. Defense counsel had always been provided open-file discovery. Further, the prosecutor responded to defense counsel's assertion that he had turned over to the defense the entirety of the police file. The defendant himself never produced a police report -- for trial, proffer, or otherwise -- containing a statement by Brenda Lane about being at home with the defendant the same night he molested B.L. Our review of the record, as well, has revealed no such police report.
Also, following voir dire but prior to opening statements, defense counsel withdrew the writ application that was pending at the supreme court regarding the issue of absent witness Brenda Lane. It appeared, thus, that defense counsel chose to waive this issue. Finally, we note that during her CAC interview, B.L. stated that on the night she was molested by the defendant, the only people in the apartment were her and the defendant.
Based on all of the foregoing reasons, we find the defendant made no showing of specific prejudice by the denial of the motion for continuance. The requirements of La. Code Crim. P. art. 709 are strictly enforced by the courts. State v. Shannon, 2010-580 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, 716-17, writ denied, 2011-0559 (La. 9/30/11), 71 So.3d 283. See State v. Meyers, 95-750 (La. App. 5 Cir. 11/26/96), 683 So.2d 1378, 1388-89, writs denied, 97-0015 (La. 5/9/97), 693 So.2d 766, 98-2530 (La. 2/5/99), 737 So.2d 745, and 2000-0995 (La. 12/8/00), 775 So.2d 1079 (no abuse of the trial court's discretion in denying the defendant's motion for a continuance on the basis of the alleged exculpatory testimony of absent witnesses, where the defendant failed to meet two of the three requirements of Article 709),
The defendant in this case has not satisfied the requirements of La. Code Crim. P. art. 709. While defense counsel provided "facts" to which Brenda Lane would have testified, her testimony arguably may have been material, assuming that she was actually present at the apartment the night the defendant molested B.L. The evidence, however, suggests that Ms. Lane was not present that night and, as such, she would have been unable to contravene the testimony of B.L. In any event, the defendant failed to satisfy the requirements of Article 709(2) and 709(3). In informing the trial court (who would have allowed Brenda Lane to testify at any time in any order) that because of her emotional instability Ms. Lane would need a month to recover, the defendant made no showing of when the witness would be available. The defendant further failed to show that due diligence was used to procure Ms. Lane's attendance at trial, despite the trial court's broad accommodations to the traveling (out-of-state) witness. See State v. Shannon, 61 So.3d at 717.
The defendant's motion was untimely; he failed to meet the requirements of La. Code Crim. P. art. 709; and, he made no showing of specific prejudice. Accordingly, we find no abuse of the trial court's discretion in denying the defendant's motion for a continuance of trial.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in denying his Batson challenge during voir dire. Specifically, the defendant contends the prosecutor improperly used peremptory strikes on three prospective jurors on the basis of race.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court adopted a three-step analysis to determine whether or not the constitutional rights of a defendant or prospective jurors have been infringed upon by impermissible discriminatory practices. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam). See La. Code Crim. P. art. 795(C), (D), & (E).
During voir dire, a number of prospective jurors were accepted from the first panel. The prosecutor used back strikes on Ms. Stacy Bickham and Frederick Brown, When several more prospective jurors were accepted from the second panel, the prosecutor used a back strike on Ms. Willie Jones. Defense counsel raised a Batson challenge at this point, and the following exchange took place:
Ms. Conner: There is a Batson objection, 323, strike. I want to say he is the African-American. He is half the strike.
Mr. Noriea: Ms. Dodie is African-American.
Ms. Conner: Yes, she is. Everyone you struck is African-American.
Mr. Noriea: Race neutral. I want to get some jurors on the second panel that is (sic) much better than her. That's a race neutral [explanation] and I can give you the case. I'm going to strike a bunch of jurors in a row to get to certain jurors in this last panel and if I don't back strike certain people that I don't feel [are] as good as the people I want to get to, that's a race neutral reason.
Ms. Conner: Your ruling?
The Court: I find it to be acceptable.
Ms. Conner: Please note my objection.
The Court: The record will so reflect, and for the record, you know, a very interesting trend to observe. I am not quite sure of the ethnicity of the three or four jurors on this panel and you identified Dr. Dodie as African-American. Just that I will ask you to identify if you think somebody else with (sic) different ethnicity.
After the jury was selected and trial had begun, the prosecutor provided the trial court with more information regarding the Batson challenge:
Mr. Noriea: Judge, I would just like to supplement the record on that Batson challenge. The case, State of Louisiana v Kirsch. It is, it is cited . That clearly states striking jurors in succession to get to a certain point is a neutral basis for striking anybody on the jury, and, secondly, the two jurors that I was headed for in this particular case is (sic) John Donahue and I think it's John Taylor, who I felt was better for the state's case. Just to clarify the record.
Ms. Conner: And, Your Honor, just a response. Striking jurors in succession is not what happened in that case. African-American jurors were back struck in order to make room for two white men.
Mr. Noriea: Well, that's part of the thing. I've go [sic] to knock out people to have one. If they are before or after, it doesn't make any difference. I knocked out to get to a better juror and that is race neutral, whether it's back strike, front strike or strike.
The defendant notes in brief that Bickham, Brown, and Jones are African-American. According to the defendant, the trial court's failure to find a Batson violation in the prosecutor's peremptory strikes of qualified African-American prospective jurors for the "sole stated reason of making room for white jurors in the next panel was clear error."
Initially, we note that it is not clear from the record what the race was of each prospective juror, as well as the twelve people (and one alternate) who served as jurors for the trial. Although the mere presence of some African-Americans on the jury is no bar to finding a prima facie case, it is appropriate to consider the fact that the State did not eliminate all African-Americans when deciding whether or not there exists a prima facie case of discrimination. See State v. Duncan, 99-2615 (La. 10/16/01), 802 So.2d 533, 549, cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). As the trial court noted, following the denial of the Batson challenge, "I am not quite sure of the ethnicity of the three or four jurors on this panel and you identified Dr. Dodie as African-American." The defendant asserts in brief that after the third strike in a row of an African-American juror by the State, defense counsel raised a Batson objection, "stating that all three peremptory strikes used by the [S]tate were used on African-American jurors." But defense counsel actually made no mention of three peremptory strikes used by the State. What defense counsel said was, "There is a Batson objection, 323, strike. I want to say he is the African-American. He is half the strike." It is not at all clear what defense counsel meant by this, but there was clearly no reference to Bickham or Brown, Defense counsel's Batson objection directly followed the prosecutor's strike of Jones, and defense counsel had made no objection when Bickham or Brown were back-struck. In any event, we find the defendant has made no showing of purposeful discrimination.
When the prosecutor offered race-neutral reasons for his use of peremptory challenges, the preliminary issue of whether the defendant made a prima facie showing is moot. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); State v. Jacobs, 99-0991 (La. 5/15/01), 803 So.2d 933, 941, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002). At this point, the trial court may "effectively collapse the first two stages of the Batson procedure, whether or not the defendant established a prima facie case of purposeful discrimination, and may then perform the critical third step of weighing the defendant's proof and the prosecutor's race-neutral reasons to determine discriminatory intent." State v. Jacobs, 803 So.2d at 941.
In this case, the inference in the trial court's denial of the Batson challenges was that the defendant did not meet his burden of proving purposeful discrimination. When we consider the third step of the Batson challenge, the inquiry is whether the trial court erred in determining there was no discriminatory intent when weighing the defendant's proof and prosecutor's race-neutral reasons. See State v. Jacobs, 803 So.2d at 941.
A reviewing court owes the trial court's evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. The Batson explanation does not need to be persuasive, and unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. See State v. Elie, 2005-1569 (La. 7/10/06), 936 So.2d 791, 795-96.
Our review of the prosecutor's explanations for the peremptory challenges against Bickham, Brown, and Jones reflects race-neutral justifications. Louisiana courts have found a myriad of explanations qualify as race-neutral reasons. See State v. Parker, 2004-1017 (La. App. 5 Cir. 3/29/05), 901 So.2d 513, 523, writ denied, 2005-1451 (La. 1/13/06), 920 So.2d 235 (finding that when accepted by the trial judge, the lodging of a peremptory challenge based on a juror's body language does not violate Batson); State v. Woods, 97-0800 (La. App. 1 Cir. 6/29/98), 713 So.2d 1231, 1234, writ denied, 98-3041 (La. 4/1/99), 741 So.2d 1281 (finding that a prospective juror's mistaken belief that the prosecutor had represented prospective juror in a lawsuit was a legitimate, race-neutral justification for the State's peremptory strike). See State v. Nelson, 2010-1724 (La. 3/13/12), 85 So.3d 21, 31-32.
In this case, the prosecutor struck these three prospective jurors to get to the prospective jurors he found more favorable, but were further down the list in the selection process. This explanation was not unreasonable and clearly had some basis in trial strategy. See State v. Handon, 2006-0131 (La. App. 1 Cir. 12/28/06), 952 So.2d 53, 59. See also State v. Kirsch, 2004-214 (La. App. 5 Cir. 7/27/04), 880 So.2d 890, 897-99 (finding that the prosecutor's explanation that he excused two African-American prospective jurors in order to influence the challenges made by the defense was race-neutral); State v. Bailey, 97-302 (La. App. 5 Cir. 4/28/98), 713 So.2d 588, 604-05, writ denied, 98-1458 (La. 10/30/98), 723 So.2d 971 (finding that where the State's reason for excluding two prospective African-American jurors was because it wanted to select a more desirable juror who was positioned after them in the selection process was race-neutral, and reasoning that "there is no showing herein that the prosecutor was excusing jurors based upon racially discriminatory reasons. Rather, it is evident that the prosecutor was making a strategic decision with regard to these two jurors. ... The state's decision was one of trial strategy and not racial discrimination."). The accepted jurors may have exhibited traits that the prosecutor reasonably could have believed would have made them desirable as jurors. See State v. Collier, 553 So.2d 815, 822 (La. 1989); State v. Leagea, 95-1210 (La. App. 1 Cir. 5/10/96), 673 So.2d 646, 650, writ denied, 96-1507 (La. 11/22/96), 683 So.2d 287.
We note also that the prosecutor struck Brown because Brown stated he required a burden of proof higher than beyond a reasonable doubt. During voir dire, the prosecutor asked Brown if he was "okay" with the State's burden of proof not being one hundred percent. Brown replied "No." When the prosecutor asked if he wanted one hundred percent certainty, Brown replied "At least 99.9." The prosecutor then asked, "Ninety nine point nine. Isn't that beyond all doubt?" Brown replied "Pretty much." When defense counsel questioned Brown, he made it clear he thought the defendant, given the type of crime he was accused of, was probably already guilty, When the prosecutor used a back strike on Brown, he stated, "I back strike juror 38, Frederick Brown. I did his 99.9 percent. Liggio is good."
Finally, we note that the shared race of the defendant and the victim in this case, both Caucasian, can be considered in a Batson challenge. While Batson is not limited to interracial cases, a commentator observed that "[s]ome lower courts take the view that "the race of a defendant as well as the race of the victim and key witnesses, is a relevant circumstance that the trial court may consider when determining whether defendant has raised an inference of purposeful discrimination sufficient to make a prima facie case.'" 5 Wayne R. LaFave, et al, Criminal Procedure § 22.3(d) (2nd ed. 2000 Supp.) (citing State Locklear, 349 N.C. 118, 140, 505 S.E.2d 277, 290 (1998), cert. denied, 526 U.S. 1075, 119 S.Ct. 1475, 143 L.Ed.2d 559 (1999)). State v. Duncan, 802 So.2d at 552.
The defendant offered no facts or circumstances supporting an inference that the State exercised its strikes in a racially discriminatory manner. In fact, the defendant offered no evidence at all. Thus, the defendant's proof, when weighed against the prosecutor's race-neutral reasons, was not sufficient to prove the existence of discriminatory intent. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 289-90. Moreover, a review of the entire voir dire transcript fails to reveal any evidence that the use of peremptory strikes by the prosecutor was motivated by impermissible considerations. See State v. Handon, 952 So.2d at 59.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant argues the trial court erred in denying his challenge for cause of a prospective juror. Specifically, the defendant contends that the answers provided by Brady Edwards indicated he would not be able to follow the law regarding his (the defendant's) right not to testify.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges. La. Const. art. I, § 17(A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1 Cir.), writ denied, 468 So.2d 570 (La. 1985). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. State v. Martin, 558 So.2d 654, 658 (La. App. 1 Cir.), writ denied, 564 So.2d 318 (La. 1990). See La. Code Crim. P. art. 797.
A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. La. Code Crim. P. art. 800(A). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been error warranting reversal of the conviction, the defendant need only show (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280-81.
Defense counsel raised a cause challenge for Edwards, which the trial court denied. Edwards was peremptorily struck by defense counsel and, thus, he did not serve on the jury of the defendant's trial. It is undisputed that defense counsel exhausted ail of the defendant's peremptory challenges before the selection of the twelfth juror. Therefore, we need only determine the issue of whether the trial court erred in denying the defendant's cause challenge of Edwards.
The crime of molestation of a juvenile (under the age of thirteen) is punishable by imprisonment at hard labor. La. R.S. 14:81.2(B)(1). Cases in which the punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. La. Code Crim. P. art. 782(A). In trials of offenses punishable necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges. See La. Code Crim. P. art. 799.
Louisiana Code of Criminal Procedure article 797 states, in pertinent part:
The state or the defendant may challenge a juror for cause on the ground that:
....
(2) The juror is not impartial, whatever the cause of his partiality, An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
....
(4) The juror will not accept the law as given to him by the court[.]
Defendant complains in brief of the following exchange between potential juror Edwards and defense counsel during questioning of the second panel of prospective jurors:
Ms. Conner: You know, a situation where, say you're a cashier at a store and there's money missing, but nobody else - it's your word against somebody else's word, can you imagine a situation like that where you wouldn't want to take the stand, because all you really could say, to get up there and say I, I didn't do it.
Edwards: But if I had been convicted before, I would sure want to get up there and say it.
Ms. Conner: Okay. So the facts that - thank you. The fact that he had been convicted of something before means you would hold his silence against him?
Edwards: Well, not against him. I think it would be odd that he wouldn't want to sit up there this time and explain what happened.
Ms. Conner: And that would be something that would affect your deliberations?
Edwards: I don't know. It could be the elephant in the room there.
Ms. Conner: Right. You would be thinking about it even when you're told -
Edwards: Most people -
Ms. Conner: That, don't look at that. It would affect you?
Edwards: Yeah.
Ms. Conner: Okay.
Edwards: It would be in the back of your mind the whole time.
At the bench conference, defense counsel, in challenging Edwards for cause, merely stated "Edwards, Fifth Amendment," before the trial court denied the challenge. (Defense counsel, in fact, challenged for cause seven prospective jurors for being Fifth Amendment "impaired." The trial court denied all of these challenges.) We find no reason to disturb the ruling of the trial court. While Edwards apparently had strong feelings about a defendant testifying if he had already been convicted of a similar crime, his brief voir dire testimony overall established he could have sat as an impartial juror and applied the law as instructed.
Edwards specifically stated that he would not hold the defendant's "silence" against him. A prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a trial court's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. See State v. Lee, 559 So.2d 1310, 1318 (La. 1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991); State v. Copeland, 530 So.2d 526, 534 (La. 1988), cert. denied, 489 US. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989). See also State v. Kang, 2002-2812 (La. 10/21/03), 859 So.2d 649, 654-55.
The line-drawing in many cases is difficult. Accordingly, the trial court must determine the challenge on the basis of the entire voir dire, and on the court's personal observations of the potential jurors during the questioning. Moreover, the reviewing court should accord great deference to the trial court's determination and should not attempt to reconstruct the voir dire by a microscopic dissection of the transcript in search of magic words or phrases that automatically signify the juror's qualification or disqualification. See State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, 405-06, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).
Despite the defendant's assertion that Edwards could not be fair and impartial, the trial court was in the best position to determine whether he could discharge his duty as a juror. Upon reviewing the voir dire in its entirety, we cannot say the trial court abused its discretion in denying defense counsel's challenge for cause.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
In his fifth assignment of error, the defendant argues the trial court abused its discretion when it held that an unreported incident that occurred twenty-five years ago was admissible under La. Code Evid. art. 412.2. Specifically, the defendant contends that the molestation claim by the defendant's stepdaughter at a pretrial hearing failed to establish that the defendant was the perpetrator.
At the April 24, 2014 pretrial hearing, forty-one-year-old A.M. testified on direct examination that when she was about fifteen years old, she went on a family camping trip in Pearlington, Mississippi, with the defendant (A.M.'s stepfather at the time), the defendant's sister (Patricia) and her husband at the time (Tim), and a person named Melanie and possibly her husband (A.M. could not remember). According to A.M., Patricia and Tim were already asleep in the tent when A.M. passed out in the same tent from drinking too much. A.M. was awakened by someone touching her. She testified that without looking, she knew it was the defendant who had "a finger inside me." A.M. pretended like she was asleep and rolled over.
On cross-examination, A.M. testified that Patricia's son, Johnny, may have gone camping with them. She stated that she drank beer until she passed out. Regarding the identity of the person who touched her as the defendant, the following exchange took place:
Q. [Patricia and Tim] were the only two people in the tent with you?
A. Until I woke up, yeah.
Q. You said that you didn't look at the person in the face who was touching you?
A. Really? I know who it was.
Q. And how is that?
A. Probably because everything leading up to.
Q. And what led up to it?
A. The flirtation, the peeking in the shower, the comments, the actions, the obvious intent.
Q. Did he ever touch you inappropriately?
A. In the tent? Yes.
Q. Aside from that.
A. No, unless you consider kissing on the lips.
...
Q. And you said that you rolled over?
A. Uh-huh. (Affirmative response.)
Q. So you never looked at the person's face, but you knew it was him?
A. Yes, I'm certain.
Q. But you never looked at the person?
A. No, I didn't.
Defense counsel called Patricia Seemann on behalf of the defendant. Patricia, the defendant's sister, recalled that also camping with her and her husband, Timothy, were Johnny and Richard (her two children), A.M., her niece, and the defendant's two children, Robert and Teren. Additionally, she stated that other people came and went. Patricia specified the defendant did not sleep at the campsite; however, she was not sure where he went. According to Patricia, the defendant left with his friend Johnny to help him remove his truck that was stuck in mud. The defendant did not return to the campsite until the next morning. Patricia testified the camping trip took place during Mardi Gras 1991.
Defense counsel also called Johnny Seemann, the defendant's nephew and A.M.'s cousin. Johnny, who went on the camping trip, testified that the defendant was not at the campsite after dark, but had left to get a truck to pull other trucks out of the mud. When Johnny woke up the next day, the defendant was not there.
The trial court took the matter "under submission." In its written reasons finding the other crimes evidence admissible under La. Code Evid. art. 412.2, the trial court stated, in pertinent part:
This matter came before the Court for hearing regarding Code of Evidence Article 412.2 evidence sought to be admitted by the State. Specifically, the State seeks to admit evidence of sexually assaultive behavior by the defendant against his then 15 year old step-daughter [sic] which occurred on a camping trip in 1987. Additionally, the State seeks to introduce the defendant's conviction regarding indecent behavior with a juvenile occurring in 2011 and involving a five year old victim. The State simply intends to introduce a certified copy of the conviction involving the 2011 incident. The State seeks to introduce testimony of the victim involving the 1987 incident.
The defense called two witnesses to dispute the testimony of [A.M.], the victim in the 1987 incident. The Court first notes that the State bears the burden of proving by a preponderance of the evidence that the incident sought to be introduced in fact occurred. See State v. Scoggins, 7[0] So.3d 145 (2011). The two witnesses were called to contradict the testimony of [A.M.] that the defendant, who was her step-father [sic] at the time, had inappropriately interacted with her for a period of time leading up to an event during a camping trip where he penetrated her vagina with his finger. Their testimony was designed to elicit two things: first, that [A.M.] was not a minor at the time of the incident; and secondly, that the defendant could not have molested her as she indicated. The Court frankly finds both the defendant's sister and nephew totally lacking in credibility and unworthy of belief. Conversely, the Court found [A.M.'s] testimony to be very credible both as to the facts of the occurrence and as to her age at the time of the incident, that being 15 years of age. Therefore, the Court finds that as to both incidents the State has far surpassed its burden of proving that the incidents occurred by a preponderance of the evidence.
After this threshold question is answered, the Court must consider whether or not the evidence should be admitted under Code of Evidence article 412.2. The answer is clearly yes. Both incidents fit squarely within the confines of article 412.2 suggesting that the evidence is probative to demonstrate the accused's commission of another crime, wrong, or act involving sexually assaultive behavior. Both acts also indicate a lustful disposition toward children. Even applying the balancing test mandated by article 403, the probative value clearly outweighs the prejudicial effect of the evidence. The Court will obviously instruct the jury as to the limited admissibility and effect of this evidence.
For the foregoing reasons, the Court finds that the other crimes evidence outlined in the State's memorandum is admissible, subject to any contemporaneous objections which may be appropriate as the evidence is sought to be admitted.
Based on the trial court's ruling regarding the admissibility of A.M.'s testimony, the defendant filed a writ with this court, which was denied. See State v. Lane, 2014-0885 (La. App. 1 Cir. 8/11/14) (unpublished writ action). Based on this court's ruling, the defendant filed for supervisory write with our supreme court; the writ was denied. See State v. Lane, 2014-1903 (La. 11/21/14), 160 So.3d 971.
The defendant argues in brief that the trial court abused its discretion in allowing his alleged unreported 25-year-old act of sexual abuse of A.M. into evidence. According to the defendant, the State failed to prove by a preponderance of the evidence that he was the perpetrator of the alleged abuse since by A.M.'s own admission, she was highly intoxicated when the abuse occurred and she never looked at the person when the incident occurred. The defendant contends that even if the trial court found the allegation had occurred and that it was relevant under Article 412.2, the evidence should have been found inadmissible under the La. Code Evid. art. 403 balancing test, which he contends the trial court failed to apply properly. According to the defendant, under the four-prong balancing test in United States v. Enjady, 134 F.3d 1427 (10th Cir.), cert. denied, 525 U.S. 887, 119 S.Ct. 202, 142 L.Ed.2d 165 (1998), the State failed to clearly prove that he was the perpetrator of A.M.'s molestation and, further, that the Enjady factors, separately and collectively, militate against admission of the allegation.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant, In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115.
Relevant evidence is 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. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. 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. Code Evid. art. 403.
Louisiana Code of Evidence article 412.2(A) provides:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
Article 412.2 was a legislative response to earlier decisions from the Louisiana Supreme Court refusing to recognize a "lustful disposition" exception to the prohibition of other crimes evidence under La. Code Evid. art. 404. State v. Buckenberger, 2007-1422 (La. App. 1 Cir. 2/8/08), 984 So.2d 751, 757, writ denied, 2008-0877 (La. 11/21/08), 996 So.2d 1104. Ultimately, questions of relevancy and admissibility of evidence are discretion calls for the trial court. Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. See State v. Mosby, 595 So.2d 1135, 1139 (La. 1992); State v. Olivieri, 2003-563 (La. App. 5 Cir. 10/28/03), 860 So.2d 207, 218.
We find the trial court did not abuse its discretion in finding A.M.'s testimony admissible under La. Code Evid. art. 412.2. The defendant's instant charge is molestation of a juvenile for inappropriately touching his eight-year-old granddaughter on the buttock. The trial court was aware at the time of the pretrial hearing that the State would introduce evidence of the defendant's 2012 conviction for indecent behavior with a juvenile, wherein the defendant pled guilty to touching a five-year-old girl on her vagina over her bathing suit in a pool at his apartment complex. (The defendant did not challenge the admissibility of this evidence.) In all three cases, the defendant molested a young female victim. Also, it appears he knew or was friendly with his victims and used that familiarity to take advantage of them.
The defendant argues that A.M. testified that she knew he was the offender, yet was impeached by her own testimony (at the pretrial hearing) that she was "extremely drunk and never looked at the person." The burden of proof for admissibility of other crimes evidence pursuant to a Prieur hearing is neither beyond a reasonable doubt nor clear and convincing evidence, but is merely preponderance of the evidence, as pointed out by the trial court in its written reasons for finding A.M.'s testimony admissible. See State v. Scoggins, 2010-0869 (La. App. 4 Cir. 6/17/11), 70 So.3d 145, 152-53, writ denied, 2011-1608 (La. 2/10/12), 79 So.3d 1033. See also Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); State v. Millien, 2002-1006 (La. App. 1 Cir. 2/14/03), 845 So.2d 506, 513-14. At the pretrial hearing, A.M. stated that while she never "looked at the person's face," she was certain that it was the defendant who had put his finger in her vagina; and leading up to this incident, numerous occasions of improper behavior by the defendant toward A.M. occurred, including flirting with her and peeking at her while she was showering. Accordingly, A.M. established by a preponderance of the evidence that the defendant was the perpetrator of the incident at the campsite.
While a Prieur hearing is not required under La. Code Evid. art. 412.2, the parties, as was the case here, may opt for such a pretrial evidentiary hearing. See State v. Williams, 2002-1030 (La. 10/15/02), 830 So.2d 984, 985-87; State v. Prieur, 277 So.2d 126 (La. 1973).
1994 La. Acts, 3d Ex.Sess., No. 51, added La. Code Evid. art. 1104, which provides that the burden of proof in pretrial Prieur hearings, "shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404." The burden of proof required by Federal Rules of Evidence Article IV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. Millien, 845 So.2d at 514.
Moreover, A.M. testified, at trial, that she passed out in the tent, but was awakened by the defendant's finger in her vagina. A.M. did not testify that she could not see or identify the defendant as the perpetrator. Defense counsel did not cross-examine A.M., so her identification of the defendant was never called into question before the jury.
The defendant further argues that even if the evidence was relevant under La. Code Evid. art. 412.2, the trial court was still required to apply the balancing test under La. Code Evid. art. 403. The defendant suggests that in determining whether evidence is more prejudicial than probative, "Louisiana appellate courts have adopted the four-prong balancing test" set forth in Enjady. Federal Rule of Evidence 403 is analogous to La. Code Evid. art. 403. See State v. Olivieri, 860 So.2d at 217. According to the court, in Enjady, 134 F.3d at 1433, Rule 403, balancing in the sexual assault context requires the court to consider: 1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. In his brief, the defendant contends the State failed to prove dearly that he was the perpetrator of A.M.'s molestation.
A survey of our state court jurisprudence reveals there are five published decisions that reference the Enjady decision. Of those five, three of the cases simply contain a brief history of Federal Rule of Evidence 413 and cite to Enjady with no reference to the four-prong balancing test. See State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, 1042-43 (which was legislatively overruled by La. Code Evid. art. 412.2); State v. Willis, 2005-218 (La. App. 3 Cir. 11/2/05), 915 So.2d 365, 386-87, writ denied, 2006-0186 (La. 6/23/06), 930 So.2d 973. cert. denied, 549 U.S. 1052, 127 S.Ct. 668, 166 L.Ed.2d 514 (2006); State v. Olivieri, 860 So.2d at 217-18. Only the third circuit in State v. Archield, 2009-1116 (La. App. 3 Cir. 4/7/10), 34 So.3d 434, 445-47, writ denied, 2010-1146 (La. 5/20/11), 63 So.3d 972, and the fourth circuit in State v. Scoggins, 70 So.3d at 153, have used the Enjady balancing test; however, both circuits in each of these decisions also employed the balancing test under La. Code Evid. art. 403. This court and the second circuit have never made any reference to Enjady in a published decision.
The source rule for Article 412.2 is Federal Rule of Evidence 413. While the wording of the federal rule differs only slightly from Article 412.2, the two rules are virtually identical in application. See Olivieri, 860 So.2d at 217. See also Williams, 830 So.2d at 986-87; Buckenberger, 984 So.2d at 756-57.
Based on the foregoing, there has clearly been no adoption, wholesale or otherwise, of the Enjady balancing test in our jurisprudence. While only the third and fourth circuits have employed the Enjady balancing test each in a single published decision, this court has never considered, applied, or even made reference to the Enjady decision or balancing test when analyzing whether a trial court properly ruled on the admissibility vel non of evidence under La. Code Evid. art. 412.2. The law in this circuit has been, and remains to be, that with admissibility issues under La. Code Evid. art. 412.2, the trial court is tasked with applying the balancing test under La. Code Evid. art. 403 to determine whether relevant evidence is admissible or not. Relevancy and the balancing test are the prerequisites for the admissibility of evidence under Article 412.2. Thus, evidence of a prior sexual offense indicating that an offender has a lustful disposition toward young females is admissible if it is relevant and the probative value of the evidence is not substantially outweighed by its prejudicial effect. See State v. Williams, 2009-48 (La. App. 5 Cir. 10/27/09), 28 So.3d 357, 364, writ denied, 2009-2565 (La. 5/7/10), 34 So.3d 860. See also State v. Fisher, 2009-1187 (La. App. 4 Cir. 5/18/10), 40 So.3d 1020, 1026-27.
Accordingly, despite the defendant's reference to Enjady and the application of its balancing test to the facts in this matter, it is submitted that his reliance on Enjady is misplaced and that applicability of the Enjady balancing test has not been adopted in this court's jurisprudence. In its written reasons for judgment, we find the trial court properly applied the balancing test:
After this threshold question is answered, the Court must consider whether or not the evidence should be admitted under Code of Evidence article 412.2. The answer is clearly yes. Both incidents fit squarely within the confines of article 412.2 suggesting that the evidence is probative to demonstrate the accused's commission of another crime, wrong, or act involving sexually assaultive behavior. Both acts also indicate a lustful disposition toward children. Even applying the balancing test mandated by article 403, the probative value clearly outweighs the prejudicial effect of the evidence.
Based on the testimony and the trial court's credibility determination of the witnesses, we find the trial court did not abuse its discretion in finding that the defendant sexually abused A.M. and that such evidence was admissible under La. Code Evid. art. 412.2 to prove the defendant's lustful disposition toward young females. We further find the trial court correctly found that the probative value of the evidence was not outweighed by the danger of unfair prejudice under La. Code Evid. art. 403. See State v. Verret, 2006-1337 (La. App. 1 Cir. 3/23/07), 960 So.2d 208, 220-22, writ denied, 2007-0830 (La. 11/16/07), 967 So.2d 520. See also State v. Johnson, 43-843 (La. App. 2 Cir. 1/28/09), 2 So.3d 606, 614-16, writ denied, 2009-0464 (La. 11/6/09), 21 So.3d 300.
Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 6
In his sixth assignment of error, the defendant argues the trial court erred in denying his motion for a continuance of trial. Specifically, the defendant contends that he should have been granted a continuance when the prosecutor, on the first day of trial, indicated he would be using live testimony in connection with the defendant's prior conviction instead of merely introducing a certified copy of the conviction to prove the crime.
In the summer of 2011, A.H., who was two weeks shy of her fifth birthday, was in the swimming pool, at the apartment complex in which she lived, with several people, including her family. The defendant, who lived in the same complex, was also in the pool. The defendant touched A.H.'s vagina over her bathing suit. The defendant was subsequently arrested for the incident. In 2012, he pled guilty to indecent behavior with a juvenile under the age of thirteen, and was sentenced to fifteen years imprisonment at hard labor, with ten years of the sentence suspended.
About ten months prior to trial, the State filed a La. Code Evid. art. 412.2 notice of intent to introduce evidence of this crime at the defendant's trial. The trial court ruled that evidence of the defendant's 2012 conviction was admissible at trial. In its written reasons for judgment, the trial court noted, in pertinent part: "Additionally, the State seeks to introduce the defendant's conviction regarding indecent behavior with a juvenile occurring in 2011 and involving a five year old victim. The State simply intends to introduce a certified copy of the conviction involving the 2011 incident."
On the first day of trial, prior to voir dire, the prosecutor informed the trial court he would be calling A.H. to testify at trial. Defense counsel moved for a continuance of trial because, allegedly, she would have prepared for trial differently had she known the State was going to call A.H. to testify, rather than just admit into evidence the "certificate" of the defendant's 2012 conviction. According to defense counsel, had they known prior to this time there would be live testimony, they would have used the surveillance video that captured the incident at the apartment complex swimming pool. Defense counsel informed the trial court that she had an expert enhance the video and that the enhanced video contradicted the police report about the defendant molesting A.H. She informed the trial court the video expert would have been called to testify, as well as other witnesses at the swimming pool, and the detective who misrepresented what was on the video.
The prosecutor responded that defense counsel had copies of the police report, clerk's file, and everything else regarding the 2012 conviction. The trial court informed counsel that its practice was to have a pretrial Article 412.2 hearing (though not required by law) of the live witness to determine the admissibility of the testimony. The trial court further stated:
The court does note that the other offense crimes notice does specifically lay out the factual allegations which are alleged against Mr. Lane in connection with that, that testimony. The court notes for the record that that is a factual scenario which resulted in a plea of guilty by Mr. Lane, for which he is currently serving time. That is an admission of guilt which, of course, is contained within the record. That matter, not within this record, and obviously weighs in the court's determination about the utility of that particular evidence.
At the Article 412.2 hearing, A.H. testified that while she was in the swimming pool, the defendant told her to sit on his lap; when she did, he touched her between the legs. In ruling her testimony admissible, the trial court made the following findings:
Well, the court notes that notice was filed December the 3rd of 2013 of the intent to use other sex offenses under the provisions of 412.2 of the Code of Evidence. The court notes that the substance of the witness's testimony in this hearing is virtually identical to the factual basis set forth in that motion which was provided to the defense. While the court has no specific recollection what was or was not said at the prior hearing, obviously I was of the impression that there would not be live testimony. However, there is no prohibition against live testimony. While it is the position of the defense that certain evidence exists which contradicts this testimony, the court notes that when Mr. Lane pled guilty In the underlying criminal charge, that was not a best interest plea, it was a plea of guilty, an admission of guilt. Having reviewed that record and the colloquy with Judge Garcia, the court is well aware that Mr. Lane admitted his guilt and confirmed to the court that he was in fact guilty of the underlying offense. Finding that to be the case, the court does not feel that this is unfair testimony and will allow the testimony.
We agree with the findings of the trial court and find no abuse of discretion in its denial of the defendant's motion for continuance. As noted by the trial court, the prosecutor had every right, at his discretion, to call any witness he sought fit for his case. Moreover, Louisiana jurisprudence has consistently held a defendant is generally not entitled of right to the names, addresses, and telephone numbers of witnesses in the absence of extraordinary circumstances. State v. Harper, 2010-0356 (La. 11/30/10), 53 So.3d 1263, 1270. Even in extraordinary circumstances, witnesses should only be "made available" to the defense if the trial court after conducting an in camera interview finds they possess exculpatory information. Harper, 53 So.3d at 1271. Defense counsel allegedly had an enhanced version of the original grainy video at some point. According to the prosecutor however, the video was "virtually unviewable."
As noted, the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial court, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Davenport, 2008-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 447, writ denied, 2009-0158 (La. 10/16/09), 19 So.3d 473. The denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. Id. Despite the video and despite the police report, the defendant, as noted by the trial court, pled guilty to the crime. Further, the extent of A.H.'s testimony at the pretrial Article 412.2 hearing, as well as at trial, was that she sat on the defendant's lap when asked and then he touched her vagina over her bathing suit. This was the same information provided by the prosecutor in its notice of intent to the defense to introduce evidence under Article 412.2. Accordingly, the defendant has failed to make any showing of specific prejudice based on the denial of the motion for continuance.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 7
In his seventh assignment of error, the defendant argues the trial court erred when "it held" that if he put on rebuttal evidence to the State's lustful disposition evidence, that it would open the door to an irrelevant and, otherwise, inadmissible, and highly prejudicial prior conviction.
In response to the State's intent to introduce prior bad acts (including a conviction) to show the defendant's lustful disposition, the defendant filed a "MOTION TO ADMIT EVIDENCE OF MR. LANE'S REPUTATION AS SOMEONE WHO DOES NOT POSSESS A LUSTFUL DISPOSITION TOWARD CHILDREN IN REBUTTAL OF THE STATE[']S 412.2 EVIDENCE." At a pretrial hearing, the trial court informed defense counsel that it needed to research the issue and, as such, deferred ruling on this motion. During the State's case-in-chief, the trial court ruled on the motion:
On the motion to admit evidence of Mr. Lane's reputation as someone who does not possess a lustful disposition toward children and are done on the state's [412.2] evidence, the court has reviewed the motion, as well as the pertinent articles and the pertinent case law. The court does note Code of Evidence Article 404 generally does not allow admission of evidence of a person's character or trait of character. There is under 404 (A) (1) an exception and under 405 there is (sic) specific guidelines concerning that. The court notes that while the predicate as outlined in the motion is not the predicate contemplated by the Code, upon a proper predicate Mr. Lane's reputation, if there's testimony concerning it, for a lustful disposition or a lack thereof towards children certainly can be admitted. However, the court will quickly point counsel to State v McMillan..., and State v Conner..., which basically makes (sic) all evidence of character proper for cross examination under those circumstances. Since we have already had, and I assume an inadvertent mention by the defense during questioning of a possible prior criminal conviction, which is not at this point admissible evidence and which I instruct the state not to discuss before the jury, the court would simply advise counsel to read those cases carefully and, if you choose to go down that path, I will certainly allow that evidence.
State v. McMillan, 2009-415 (La. App. 5 Cir. 12/8/09), 30 So.3d 36, 43-44, writ denied, 2009-2831 (La. 6/18/10), 38 So.3d 321.
State v. Conner, 2002-363 (La. App. 5 Cir. 11/13/02), 833 So.2d 396, writ denied, 2002-3064 (La. 4/25/03), 842 So.2d 396. --------
State v. McMillan, 2009-415 (La. App. 5 Cir. 12/8/09), 30 So.3d 36, 43-44, writ denied, 2009-2831 (La. 6/18/10), 38 So.3d 321.
State v. Conner, 2002-363 (La. App. 5 Cir. 11/13/02), 833 So.2d 396, writ denied, 2002-3064 (La. 4/25/03), 842 So.2d 396. --------
The defendant argues in brief that the trial court's ruling would have allowed the prosecution to introduce evidence regarding the defendant's irrelevant 1982 conviction for murder, and that such a ruling was error. The defendant also contends that the trial court's "reliance" on the cases it alluded to in its ruling was misplaced. Contrary to the defendant's assertion, the trial court made no such finding that his murder conviction was admissible evidence. The trial court simply noted that "all evidence of character" was proper for cross-examination. In any event, the trial court specifically ruled that defense evidence of the defendant's reputation was allowable and merely suggested that counsel read two cited cases. In the defendant's case-in-chief, defense counsel chose not to put on defense witnesses for reputation evidence, and raised no issue concerning the trial court's interpretation of the cited cases. Furthermore, defense counsel made no motions and filed no objections regarding the trial court's ruling (given the favorable ruling for the defendant) at any time during the trial. See Code Crim. P. art. 841(A).
Accordingly, this assignment of error is without merit.
CONCLUSION
For all these reasons, we affirm the conviction and sentence of the defendant, Robert Stanley Lane, Jr.
CONVICTION AND SENTENCE AFFIRMED.
CRAIN, J., concurring.
The trial court did not abuse its discretion in denying the motion to continue, because the defendant failed to comply with Subparts (2) and (3) of Louisiana Civil Code article 709. The defendant did not subpoena the witness and made no effort to take advantage of the trial court's offer to allow the witness to testify out of turn. Generally, the "due diligence" requirement of Article 709(3) is not satisfied when defense counsel fails to have the potential witness subpoenaed. State v. Terry, 359 So. 2d 172, 173 (La. 1978). The defendant should have subpoenaed the witness pursuant to Louisiana Code of Criminal Procedure Article 741, which provides the method of obtaining witnesses from outside the state. See Terry, 359 So. 2d at 174. Furthermore, the defendant did not provide sufficient facts to show that the witness would be available at a later time as required by Article 709(2). For these reasons, I concur in affirming the denial of the motion to continue. I respectfully disagree with the analysis in the majority opinion of the materiality of the expected testimony of the absent witness (the suggested testimony would, if believed, contradict the victim's testimony) and the timeliness of the motion to continue (the event complained of occurred during the week prior to trial).
Relative to the Batson issue, the state, in an effort to impanel two particular jurors from the second venire panel, used peremptory challenges to remove numerous members of the jury pool, only three of whom were identified as African-American. From the first panel of prospective jurors, the state accepted Dodie Arnold, identified as African-American by both parties, then used its first peremptory challenge to remove Stacy Bickham and its second challenge to remove Frederick Brown, both of whom have been identified as African-American by the defendant on appeal. No reason was given for the removal of Bickham, while the prosecutor indicated that Brown's comments during voir dire suggested that he would hold the state to an unreasonably high burden of proof. The state next removed Leslie Chaix, whom neither party has identified as African-American.
After completing voir dire of the second panel, the state used its fourth peremptory challenge to back-strike Willie Jones from the first panel, prompting the Batson objection. The prosecutor explained that he was trying to get to "better" jurors on the second panel, later identified as John Donahue and John Taylor. Consistent with that explanation, the state then used eight peremptory challenges to reach Donahue and Taylor, who were the eleventh and twelfth jurors selected. None of the eight prospective jurors removed by those peremptory challenges have been identified as African-American, supporting the assertion that those prospective jurors were not eliminated because of their race, but to make room for the two preferred jurors. Given these facts, the trial court did not abuse its discretion in denying the Batson objection.
Finally, the defendant complains of the trial court's denial of his challenge for cause relative to prospective juror Brady Edwards. The defendant did not object to the denial of his cause challenge. The failure to object to the trial court's denial of a challenge for cause of a prospective juror precludes appellate review of that assignment of error. See La. Code Crim. Pro. art. 800A; State v. Mills, 13-0573 (La. App. 1 Cir. 8/27/14), 153 So. 3d 481, 486, writs denied, 14-2027 (La. 5/22/15), 170 So. 3d 982 and 14-2269 (La. 9/18/15), ___ So. 3d ___.
For these reasons, I concur.