Opinion
NO. 2016 KA 1615
09-15-2017
STATE OF LOUISIANA v. OWEN OCKMAN
J. Rodney Baum Baton Rouge, Louisiana Counsel for Defendant/Appellant Owen Ockman Ricky L. Babin District Attorney Donaldsonville, Louisiana Donald D. Candell Assistant District Attorney Gonzales, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana
Case No. 31,287 The Honorable Jessie M. LeBlanc, Judge Presiding J. Rodney Baum
Baton Rouge, Louisiana Counsel for Defendant/Appellant
Owen Ockman Ricky L. Babin
District Attorney
Donaldsonville, Louisiana Donald D. Candell
Assistant District Attorney
Gonzales, Louisiana Counsel for Appellee
State of Louisiana BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. THERIOT, J.
Owen Ockman ("Defendant") was charged by grand jury indictment with indecent behavior with juveniles (victim over 12 and under 17), a violation of La. R.S. 14:81. He pled not guilty and, following a jury trial, was found guilty as charged. Defendant was sentenced to five years imprisonment at hard labor. Defendant now appeals, designating seven assignments of error. For the following reasons, we affirm the conviction and sentence.
FACTS
When B.H. was a young teenager in 2007, she spent a lot of time with her cousins at her uncle's (Defendant's) home in Gonzales, Louisiana. Along with other children from the neighborhood, B.H. and her brother often slept at Defendant's house on weekends. B.H. slept on a palette (a blanket spread on the floor with pillows) in the living room. According to B.H., Defendant began molesting her when she was thirteen or fourteen years old. On several occasions, he grabbed her breasts. He also laid down next to her on the palette and put his finger in her vagina. Further, on one occasion, Defendant pulled down her pants and underwear and rubbed his penis on her buttocks. B.H. also testified that Defendant put his finger in her vagina when they were in Defendant's pool.
Defendant testified at trial. He admitted that he grabbed B.H.'s buttocks, but only in a playful fashion. He denied that he ever touched her breasts or put his finger in her vagina.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, Defendant argues the trial court erred in allowing the State's expert witness to give her opinion on the ultimate issue.
Dr. Neha Mehta, a pediatrician at Children's Hospital in New Orleans, testified at trial. The parties stipulated that she was an expert in general pediatrics and child-abuse pediatrics. Dr. Mehta saw B.H. when she was twenty years old. The doctor obtained a medical history and performed a physical examination of B.H., the result of which was normal. Dr. Mehta also asked B.H. to provide her own history of the events at issue. According to the doctor, B.H. told her that she had been going to the home of a relative about every other weekend, and that an uncle there had been touching her. B.H. further told Dr. Mehta that her uncle had touched her breasts, put his finger inside her vagina, and touched B.H.'s body with his penis. Shortly thereafter, the prosecutor asked, "And given [B.H.'s] history and your physical finding, did you make any conclusions?" Dr. Mehta responded, "Yes. My diagnosis for [B.H.] was child sexual abuse."
Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. Specifically, "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify [thereto] . . . in the form of an opinion or otherwise." State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). Notably, the Supreme Court of Louisiana has placed limitations on this codal provision, stating that, "expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." State v. Stucke, 419 So.2d 939, 945 (La. 1982). State v. Young, 2009-1177 (La. 4/5/10), 35 So.3d 1042, 1047, cert. denied, 562 U.S. 1044, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Foret, 628 So.2d 1116 (La. 1993).
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. Code Evid. art. 704.
Dr. Mehta's testimony that she diagnosed B.H. with child sexual abuse was, in effect, an opinion as to Defendant's guilt or innocence. Courts will exclude "extreme expressions," even by experts, on matters such as how the case should be decided or whether the defendant is guilty. See La. Code Evid. art. 704; State v. Soler, 93-1042 (La. App. 5 Cir. 4/26/94), 636 So.2d 1069, 1080, writ denied, 94-1361 (La. 11/4/94), 644 So.2d 1055. Defense counsel, however, did not object to this testimony, either when the doctor first stated her diagnosis or at any time thereafter. The failure to raise an objection to the admissibility and reliability of an expert's testimony constitutes a waiver of such an objection. A contemporaneous objection must be made to the disputed evidence or testimony in the trial court record to preserve the issue for appellate review. See La. Code Evid. art. 103; La. Code Crim. P. art. 841. See State v. Tillery, 2014-429 (La. App. 5 Cir. 12/16/14), 167 So.3d 15, 24, writ denied, 2015-0106 (La. 11/6/15), 180 So.3d 306.
In Soler, 636 So.2d at 1079-80, when the prosecutor asked the doctor, qualified as an expert, if he thought the acts described by the victim constituted molestation, the doctor replied, "Yes." There was no objection to the doctor's opinion. The court found that the doctor's statement was not erroneously admitted into evidence and opined that the "doctor did not express an opinion on defendant's guilt; he merely stated that the acts described by the child constituted molestation." Further, according to the court, "The jurors were free to form their own opinion as to whether to believe the child's allegations and whether defendant was the person who had abused the child, assuming they accepted [the doctor's] opinion."
Accordingly, we find that as to Dr. Mehta's testimony, Defendant waived any objection to her testimony. This assignment of error is without merit. Defendant, in his sixth assignment of error, also argues that the failure to object to Dr. Mehta's testimony constituted ineffective assistance of counsel. We address this issue below.
ASSIGNMENTS OF ERROR NOS. 2 and 3
In his second and third assignments of error (argued together by the defendant), Defendant argues, respectively, that the trial court erred in allowing evidence of a previous allegation of sexual abuse committed by him; and that the trial court erred in failing to instruct the jury on the proper consideration of this other "bad act" evidence.
Before trial, the State filed a notice of intent to introduce other crimes evidence under La. Code Evid. art 412.2. At the pretrial hearing on this issue, the State adduced testimony from A.O., the defendant's half-sister, who was approximately twelve years younger than the defendant; and from Gaynell Ockman, the stepmother of the defendant and biological mother of A.O. According to these two witnesses, Defendant made A.O. touch his penis when she was about four years old. On one occasion, when A.O. was about seven or eight years old, Defendant laid on top of her. On another occasion, when A.O. was about nine years old and sleeping on the couch at home, Defendant approached A.O. and placed his penis in her hand. A.O. awoke, became hysterical, and ran screaming and crying to her mother's bedroom. When Gaynell confronted the defendant about this, Defendant said that he had put shaving cream, not his penis, in A.O.'s hand. Gaynell also stated during her testimony that Rita Ockman, the defendant's grandmother, was not at the house the night of this incident. Despite this testimony from Gaynell, Rita testified at the pretrial hearing that she (Rita) was at the house on the night of the incident. According to Rita, she waited at the house until Defendant had come home from going out with some friends. Rita alleged that Defendant had gotten some shaving cream from the bathroom and put it on the hand of a sleeping A.O. This caused A.O. to jump up and scream and, according to Rita, A.O. grabbed the tongue of the dog that had been resting near A.O.
The trial court denied the State's motion to use this other crime evidence. The trial court noted that in B.H.'s case, the allegations were as follows: Defendant rubbed her back and chest; he took her pants off and put his finger in her vagina; he masturbated in front of her; and he walked around naked and laid in bed with her. The trial court then found: "The allegations of this incident, while horrendous, are only remotely similar to those involving the defendant's sister. But for the fact that those victims were young girls to whom Mr. Ockman was related, the similarities end there." The trial court further found that, because Defendant was never charged and there was conflicting testimony as to whether the incident had actually occurred, the probative value of the evidence was outweighed by the prejudicial effect it would create if admitted.
While the result was the same, i.e. the evidence was not allowed, the trial court incorrectly noted that the defendant's Motion in Limine was granted.
It is not clear why this evidence would not be admissible under La. Code Evid. art. 412.2. The fact that the defendant's (alleged) victims were both young girls who were relatives of his falls within the very broad ambit of Article 412.2. The jurisprudence is replete with similar scenarios wherein the other crimes evidence was admissible under this article. See State v. Washburn, 2016-335 (La. App. 3 Cir. 11/2/16), 206 So.3d 1143, 1146-49; State v. Williams, 2011-876 (La. App. 5 Cir. 3/27/12), 91 So.3d 437, writ denied, 2012-1013 (La. 9/21/12), 98 So.3d 334; State v. Fisher, 2009-1187 (La. App. 4 Cir. 5/18/10), 40 So.3d 1020, 1024-27; State v. Meranta, 2009-1378 (La. App. 1 Cir. 3/26/10), 30 So.3d 1183 (unpublished), writ denied, 2010-0896 (La. 11/12/10), 51 So.3d 2; 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. Cf. State v. Wright, 2011-0141 (La. 12/6/11), 79 So.3d 309, 316-19 (noting that La. Code Evid. art. 412.2 was enacted to loosen restrictions on other crimes evidence and to allow evidence of "lustful disposition" in cases involving sexual offenses, the Supreme Court of Louisiana found that evidence regarding the defendant's sexual acts against a fourteen-year-old girl was admissible against the defendant, who was charged with aggravated incest of his seventeen-year-old son). --------
On direct examination at trial, Defendant was asked about when he first heard about the allegations against him. Defendant replied that he thought he had first heard about the allegation from his sister, and that he did not know how to approach it. Defendant then stated, "This is the first time I had ever been accused of doing anything of this nature."
At the conclusion of Defendant's direct examination, the prosecutor argued that Defendant, having testified that this was the first time he had ever been accused of doing anything of this nature, opened the door for having his credibility attacked on cross-examination. The prosecutor argued that she should be allowed to use the incident with A.O. to impeach the defendant. The trial court agreed with the prosecutor and made the following findings:
Although it's a Second Circuit case [State v. Bratton], I think it's very on point. It gives a lot of guidance to this Court. Therein, in the trial, a defendant testified that he had never been in trouble before, and in that case, the Court said that, "The defendant opened the door to cross-examination about his criminal past when he voluntarily testified on direct examination that he had never been in trouble before. Having provided testimony suggesting a clean criminal history, the defendant subjected himself to cross-examination regarding his criminal history." The Court went on to discuss that, "Evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless its probative value outweighs its prejudicial effect and unless other safeguards are met. A statutory exception to this general rule is set forth in Code of Evidence Article 609.1, which allowed evidence of prior criminal convictions for impeachment purposes but disallows inquiry into matters for which there had only been an arrest. A jurisprudential exception also exists for instances in which the defendant chooses to testify. In such instances, the State is not precluded from contradictory"—I can't talk either--"contradicting the defendant's testimony on an issue which the defendant himself brought into the case."
Based upon that, the Court is going to find that the defendant opened the door for cross-examination on this issue.
On cross-examination of the defendant, the following relevant exchange took place:
Q. Or whomever. You made the statements earlier that you were shocked because this is the first time you had ever been accused of anything of this nature, correct?
A. Yes, meaning --
Q. You said that?
A. -- "Molestation."
Q. Okay. And that's not really true, is it?
A. The Molestation? Yes, it is. I've never been accused ---
Q. Who is [A.O.]?
A. That's my half-sister.
Q. And isn't it true that [A.O.] made some allegations against you?
A. She said I, if I can say it, or I will say it -- she stated that I put my penis in her hand --
Q. And what's the --
A. -- when she was four --
Q. -- age difference?
A. -- four years old.
Q. What's the age difference between you and [A.O.]?
A. She's, I'd say, what, seven, eight, ten years, something like that.
Defendant argues in his brief that the trial court, in reversing itself on its earlier pretrial ruling on the admissibility of other crimes evidence, unfairly exposed him to the dangers outlined in the pretrial ruling. Defendant asserts that the claim of abuse brought out on cross-examination greatly damaged his credibility and allowed the jury to decide that he had sexually abused B.H. because of this prior allegation. According to Defendant, this was reversible error because it created unfair prejudice against him and deprived him of a fair trial.
We do not agree. We note initially that the trial court did not reverse itself. Following the trial court's ruling on allowing evidence regarding A.O. for the limited purpose of impeachment, Defendant again objected to the ruling. The trial court stated in pertinent part:
And as I stated in chambers, Mr. Gutierrez [defense counsel], I appreciate your argument. I do agree. I ruled on the Motion In Limine. I stated that in my original ruling, that I had made a ruling in the Motion In Limine to preclude that evidence because I felt like that it was prejudicial. However, this is not being offered for a probative value. It's being offered for the purposes of impeachment and to attack the credibility of the
witness, and, therefore, I do believe that it would be admissible for that limited purpose, not for any probative value.
Evidence of other crimes is generally inadmissible in the guilt phase of a criminal trial unless its probative value outweighs its prejudicial effect and unless other safeguards are met. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 99. A statutory exception to this general rule is found in La. Code Evid. art. 607(D)(2), which provides in pertinent part that other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness. A jurisprudential exception also exists for instances in which the defendant chooses to testify. In such instances, the State is not precluded from contradicting the defendant's testimony on an issue which the defendant himself brought into the case. State v. Bratton, 32,090 (La. App. 2 Cir. 6/16/99), 742 So.2d 896, 899. See State v. Cotten, 438 So.2d 1156, 1163 (La. App. 1st Cir. 1983), writ denied, 444 So.2d 606 (La. 1984).
A trial court is given wide discretion when deciding whether to admit impeachment evidence. State v. Rose, 50,861 (La. App. 2 Cir. 9/28/16), 206 So.3d 1102, 1111 n.6. The defendant in the instant matter, having taken the witness stand in his own behalf, subjected his testimony to impeachment and put his credibility at issue like any other witness. See State v. Prather, 290 So.2d 840, 841-42 (La. 1974); State v. Guillory, 9 So.2d 450, 453 (La. 1942). When Defendant insisted that he had never before been accused of anything like this, despite having previously been accused of sexual misconduct with a child, he "opened the door" to the admission of evidence contradicting his testimony in order to attack his credibility. See La. Code Evid. art. 607(D)(2); State v. Mitchell, 94-521 (La. App. 3 Cir. 11/2/94), 649 So.2d 569, 571-73. Further, the impeaching evidence was minimal; the prosecutor went into none of the details that were brought forth at the pretrial hearing. Accordingly, the trial court did not abuse its discretion in allowing into evidence an allegation of prior sexual abuse by the defendant's half-sister.
Defendant also argues that the trial court erred in failing to instruct the jury on the proper consideration of the other bad evidence against him that was allowed to be presented at trial. Defense counsel requested no such special jury charge; nor did he object to the trial court's failure to include such a charge in its jury instructions. Accordingly, Defendant waived any objection to the alleged error. See La. Code Crim. P. arts. 801(C) and 841. Below we address Defendant's assertions that the failure to request a limiting jury instruction constituted ineffective assistance of counsel.
Assignments of error number two and three are without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, Defendant argues the trial court erred in not allowing Defendant to present three photographs as evidence in its case-in-chief.
The three photographs excluded were proffered into evidence. One photograph is of seven people, mostly teenagers, sitting around a table. Another photograph is of three people on the back of a golf cart. The last photograph is of four people (two teenagers and two children) lying on the floor, under covers or in a sleeping bag.
In excluding the photographs from evidence, the trial court stated:
With regard to the three photographs that have been presented, one depicts some children sleeping on, or laying on, a palette. Some look like they're sleeping. One looks like they're sleeping. The others look like they're playing a game on their phone or texting, the two smaller ones laughing, a
group of kids on a golf cart. And the other one is table [sic] with seven, looks like, teenagers, preteens sitting around the table smiling. Those I would exclude. I would grant the Motion In Limine under 404(A)(1). 404(A) says, "Evidence of a person's character," or "trait of his character," "such as moral quality, is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of his character, such as moral quality, offered by an accused or by the prosecution to rebut the character evidence; provided that such evidence shall be restricted to showing those moral qualities pertinent to the crime with which he is charged, and that character evidence cannot destroy conclusive evidence of guilt." The Court finds that these would not be showing to being relevant to the crime that's accused of at this time. Additionally, the concern under 404 is that generally character evidence has minimal value and the risks are much greater with offering that. So, outside some exceptional circumstance, I would not allow it, so these will be excluded.
Photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted are generally admissible. A trial court's ruling with respect to the admissibility of photographs will not be overturned unless it is clear that the prejudicial effect of the evidence outweighs its probative value. State v. Coleman, 2014-0402 (La. 2/26/16), 188 So.3d 174, 201, cert. denied, ___U.S.___, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016). See State v. Magee, 2011-0574 (La. 9/28/12), 103 So.3d 285, 323, cert. denied, ___U.S.___, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).
We see no reason to disturb the trial court's ruling. These photographs had very little, if any, evidentiary value. They established nothing more than that teenagers and children visited Defendant's home, assuming these were pictures of Defendant's home and property. This issue of many people "hanging out" at Defendant's house was conceded by every witness who addressed the issue and was contradicted by no one. The fundamental right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substantially outweighed by other legitimate considerations. Coleman, 188 So.3d at 197. See Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).
Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
In his fifth assignment of error, Defendant argues the trial court erred in granting the State's challenge for cause of a prospective juror. Specifically, Defendant contends that a particular prospective juror should not have been struck for cause because she was rehabilitated and indicated she could be fair. Further, Defendant argues that the State had already used all six of its peremptory challenges prior to the prospective juror in question being struck for cause, and that granting an improper for cause challenge after the state had exhausted its peremptory challenges is the same as granting an extra peremptory challenge to the State.
The crime of indecent behavior with juveniles (juvenile thirteen years or older) is punishable by imprisonment with or without hard labor. La. R.S. 14:81(H)(1). Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict. La. Code Crim. P. art. 782(A). In trials of offenses punishable necessarily by death or imprisonment at hard labor, each defendant shall have twelve peremptory challenges. In all other cases, each defendant shall have six peremptory challenges. La. Code Crim. P. art. 799.
The erroneous allowance to the State of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the State of more peremptory challenges than it is entitled to by law. La. Code Crim. P. art. 800(B). Despite Defendant's assertion in brief that the State used all of its peremptory strikes, the State only used five of its six peremptory challenges (and Defendant used two). Therefore, to validly claim that the trial court made a reversible error, Defendant must prove that the trial court erroneously excused two or more jurors for cause. Defendant in his brief challenges the dismissal of a single prospective juror for cause. As such, the dismissal of this prospective juror did not have the effect of giving the State more peremptory challenges than it was entitled to by law. Accordingly, Defendant has no ground for complaint.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 6
In his sixth assignment of error, Defendant argues ineffective assistance of counsel. Specifically, Defendant contends that two instances of ineffective assistance of counsel denied him a fair trial; namely, defense counsel's failure to object to Dr. Mehta's diagnosis of B.H. and defense counsel's failure to request a limiting jury charge on how the other crimes evidence was to be considered.
The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859-60 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1 Cir. 11/8/96), 684 So.2d 432, 438.
Claims of ineffective assistance of counsel, by their very nature, are highly fact-sensitive. State v. Henry, 2000-2250 (La. App. 1 Cir. 5/11/01), 788 So.2d 535, 540, writ denied, 2001-2299 (La. 6/21/02), 818 So.2d 791. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. State v. Jordan, 35,643 (La. App. 2 Cir. 4/3/02), 813 So.2d 1123, 1134, writ denied, 2002-1570 (La. 5/30/03), 845 So.2d 1067. Moreover, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rest with an accused and his attorney, and the fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. State v. Folse, 623 So.2d 59, 71 (La. App. 1st Cir. 1993).
Regarding Dr. Mehta's testimony, it is not clear if defense counsel "failed to make the proper" objection, as Defendant suggests in brief, or whether, based on a tactical decision, he specifically chose not to object in order to confront the doctor with the issue on cross-examination. Following is the relevant exchange between Dr. Mehta and defense counsel:
Q. How are you doing, Doctor?
A. Hello.
Q. You said your diagnosis was child sex abuse?
A. That is correct, sir.
Q. Okay. And that's based on what was reported to you by the victim?
A. If I'm correct, it was based on history and physical examination of the victim, yes.
Q. Right. But the physical examination was inconclusive? Did I understand that right or wrong?
A. I would say her physical examination was normal, which is consistent with the history that she provided.
Q. Okay. But that's a complicated way of saying you didn't find anything?
A. So, her body is normal and that neither --
Q. Right.
A. -- proves nor disproves abuse?
Q. Right. So, your diagnosis is based on what she told you, right? You have no other physical evidence?
A. Correct in that there was no physical findings or physical evidence from her medical examination.
Q. All right. So, your diagnosis is strictly on what she said to you?
A. It's based - --
MS. BUQUOI: Objection, asked --
BY MR. GUTIERREZ: Q. You have - --
MS. BUQUOI: -- and answered several times.
THE COURT: Sustained.
BY MR. GUTIERREZ: Q. You have no outside information to reach that diagnosis?
MS. BUQUOI: Objection, asked and answered.
THE COURT: Sustained.
During this part of Dr. Mehta's cross-examination, defense counsel was able to demonstrate that the doctor's diagnosis of child sexual abuse was based on nothing more than B.H.'s own personal account of what a relative had done to her. As such, defense counsel may have thought that whatever level of credibility B.H. had when she testified herself (prior to Dr. Mehta testifying) would have been neither augmented nor diminished by Dr. Mehta's mere rehash of B.H.'s own testimony. In any event, any contemporaneous-objection error was harmless. Thus, even if defense counsel's failure to object constituted deficient performance, Defendant has failed to prove the deficient performance prejudiced the defense.
Error resulting from the improper admission of an expert's opinion concerning the ultimate issue of a defendant's guilt is subject to a harmless error analysis. State v. Trahan, 93-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, 706. The proper analysis for determining harmless error in such a situation is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Id. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).
B.H. testified in some detail of Defendant's sexual abuse over an extended period of time. B.H., along with her younger brother, D.C., visited Defendant's house about every other weekend, and often slept over. B.H. would sleep on top of a blanket, spread out on the floor (a palette). B.H. testified that Defendant began molesting her when she was around thirteen to fourteen years old. Specifically, Defendant would grab her breasts and stick his finger in her vagina. On one occasion, when B.H. was lying on the palette and had her back to the defendant, Defendant pulled her pants and underwear down and rubbed his penis on her buttocks. Defendant would also stick his finger in B.H.'s vagina when they were together in the defendant's above-ground pool. Further, when Defendant and B.H. rode in the golf cart together, Defendant would grab her breasts. B.H. also testified that after she made the allegation, she and the defendant talked on the phone. According to B.H., Defendant "was basically trying to get [her] not to say like the worst parts" of what had happened.
Charles Cambre, B.H.'s stepfather with whom B.H. lived, testified that when B.H. first revealed the allegations of sexual abuse to him and his wife (B.H.'s mother and the defendant's stepsister), Defendant kept calling their house, but Charles would not answer the phone. Finally, when he did answer the phone, Defendant, according to Charles, was crying. Defendant told Charles that he was sorry. Charles testified that Defendant then said, "I'm not saying [B.H.'s] lying, but I just don't remember." B.H.'s mother testified that she had a similar conversation with Defendant wherein he told her that he was sorry, he was not calling B.H. a liar, but that he just did not remember.
D.C., B.H.'s brother who often slept at Defendant's house with B.H., testified that he slept on the couch (behind the palette) and B.H. slept on the palette. According to D.C., when B.H. was on the palette alone, Defendant would lie down very close to her "facing his entire body towards either her back end or towards her front end[.]" During these occasions, Defendant's wife was in her bedroom sleeping alone.
Defendant himself testified on cross-examination that he inappropriately touched B.H., but stated that the touching was in the context of joking around:
Q. And in your text with [B.H.], you admit that you engaged in inappropriate touching, correct?
A. Repeat that again, please.
Q. When you were texting [B.H.], you admitted that you had engaged in inappropriate touching of [B.H.]?
A. Yes.
Q. And what did you do that [B.H.] could think was sexual?
A. We all horseplayed and we joked around. We have inside stories, inside things from my grandmother, making comments of -- like [B.H.] would come up to me and grab my testicles and go, "Toot, toot, toot, toot, toot." It was a joking thing that everybody did. Once again, I mean, I would go grab her butt sometimes. I would slap her butt.
Defendant admitted that sometimes he laid on the palette (and fell asleep) with his own children, as well as with other children. Defendant also testified that he used to rub B.H.'s back and stomach, and that he always asked B.H. first before he did anything. According to the defendant, when B.H. was between the ages of fifteen and eighteen, he grabbed her "butt" in several places, including the kitchen, hallway, living room, and outside.
Jessica Ockman, the defendant's wife, testified at trial. Following the allegations of sexual abuse, Jessica either spoke to B.H. or sent B.H. several texts regarding these claims against her husband. These messages or statements were addressed on cross-examination. Jessica had texted B.H., "I never thought you were lying." Jessica explained this text meant that Jessica thought B.H. had misinterpreted the situation. Jessica had told (or texted) B.H. that Defendant needed help. Jessica explained at trial that she meant that Defendant needed help because he had begun drinking very heavily because of these allegations. The following three communications were addressed together. Jessica had texted B.H., "He never should have done it. You should have said, 'No.'" Jessica had told (or texted) B.H. that Defendant was sorry; and Jessica had told (or texted) B.H. that what Defendant did was wrong and she (Jessica) was not defending him.
Jessica had also told (or texted) B.H., "I've got to help him break this cycle." When asked on cross-examination "the cycle of what," Jessica responded that Defendant's family was addicted to gambling and that other members of Defendant's family had issues with drinking.
Finally, there was impeachment testimony at trial that suggested Defendant was not being truthful about never having had allegations of sexual abuse against him. The former allegation was by the defendant's half-sister, who accused Defendant of putting his penis in her hand.
Based on all of the foregoing testimonial evidence adduced at trial, there is ample evidence from which the jury could have concluded that Defendant was guilty of indecent behavior with juveniles. As such, any error in allowing evidence of the doctor's diagnosis of B.H. to be presented to the jury was harmless beyond a reasonable doubt. La. Code Crim. P. art. 921; Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.
Defendant also claims that defense counsel was ineffective for failure to request a limiting jury charge on how the other crimes evidence was to be considered. At the conclusion of trial, defense counsel made no request for a special jury charge regarding the other crimes evidence allowed at trial to impeach Defendant. The trial court did not include any charges in its jury instructions on other crimes evidence. Following the jury instructions, the trial court noted to counsel that there were no objections in the jury charge conference. Defense counsel agreed with the trial court.
In the absence of a limiting instruction request, failure to restrict the evidence and instruct the jury shall not constitute reversible error. See La. Code Evid. art. 105. Moreover, since the State's reference to the other crimes evidence was minimal during the cross-examination of the defendant, it is possible defense counsel made a strategic decision to not have the trial court remind the jury about the other crimes evidence, only to instruct the jury that such evidence was to be considered for a particular reason only. If an alleged error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. See State v. Duplichan, 2006-852 (La. App. 3 Cir. 12/6/06), 945 So.2d 170, 182, writ denied, 2007-0148 (La. 9/28/07), 964 So.2d 351. Further, even if it is questionable whether foregoing an instruction on other crimes evidence would ever be a viable trial strategy, and defense counsel's performance was therefore deficient, we find that such performance did not prejudice the defendant or cause a breakdown in the adversarial process that renders the result unreliable. See State v. Reed, 2014-1980 (La. 9/7/16), 200 So.3d 291, 314-15, cert. denied, ___ U.S. ___, 137 S.Ct. 787, 197 L.Ed.2d 258 (2017); Duplichan, 945 So.2d at 181-83. As already discussed in the above harmless error analysis, there is ample evidence from which the jury could have concluded that Defendant was guilty of indecent behavior with juveniles. Accordingly, any error in defense counsel's failure to request a special jury charge on other crimes evidence was harmless beyond a reasonable doubt. La. Code Crim. P. art. 921; see also Sullivan, 508 U.S. at 279, 113 S.Ct. at 2081.
If Defendant believes that there is evidence to present beyond what is contained in the instant record, such evidence must be adduced in an evidentiary hearing in the district court. Defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq., in order to receive such a hearing. See State v. Albert, 96-1991 (La. App. 1 Cir. 6/20/97), 697 So.2d 1355, 1363-64; see also Johnson, 951 So.2d at 304.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 7
In his seventh assignment of error, Defendant argues he is entitled to a review for errors patent on the face of the record.
This court routinely reviews the record for error under La. Code Crim. P. art. 920(2), whether or not such a request is made by a defendant or defense counsel. Under La. Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
For the foregoing reasons, we affirm the Defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.