State v. Perilloux

Full title: STATE OF LOUISIANA v. ELZEY JEFFREY PERILLOUX

Court: Court of Appeals of Louisiana, Fifth Circuit

Date published: Dec 20, 2023

378 So. 3d 280 (La. Ct. App. 2023)

Opinion

NO. 21-KA-448

12-20-2023

STATE of Louisiana v. Elzey Jeffrey PERILLOUX

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Jeffrey M. Landry, Christopher N. Walters, Grant L. Willis COUNSEL FOR DEFENDANT/APPELLANT, ELZEY JEFFREY PERILLOUX, James E. Boren, Baton Rouge, Carol Anne Kolinchak

SCHLEGEL, J.

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA, NOS. 18,193 & 62,441, DIVISION "C", HONORABLE DENNIS J. WALDRON, JUDGE AD HOC PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Jeffrey M. Landry, Christopher N. Walters, Grant L. Willis

COUNSEL FOR DEFENDANT/APPELLANT, ELZEY JEFFREY PERILLOUX, James E. Boren, Baton Rouge, Carol Anne Kolinchak

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel

SCHLEGEL, J.

₁Defendant, Elzey Jeffrey Perilloux, appeals his convictions and sentences for three counts of indecent behavior with a juvenile and one count of misdemeanor sexual battery. For reasons, stated more fully below, we affirm defendant’s convictions and sentences.

PROCEDURAL BACKGROUND

On June 25, 2018, a grand jury indicted defendant, Elzey Jeffrey Perilloux, with two counts of indecent behavior with a juvenile, A.G.,¹ that occurred in May and June 2017 (counts one and count two), and one count of indecent behavior with a juvenile, E.H., that occurred in June 2017 (count three), in violation of La. R.S. 14:81. On the same day, the grand jury also indicted defendant of misdemeanor sexual battery of S.B., that occurred in December 2017, in violation of La. R.S. 14:43.1.1. On July 19, 2018, defendant pled not guilty to all counts. On September 8, 2020, the three counts of indecent behavior with a juvenile proceeded to trial before a six-person jury. On September 12, 2020, the jury unanimously found defendant guilty as charged on all three counts. The trial court found defendant guilty as charged of misdemeanor sexual battery of S.B. on the same date. The State requested that defendant be remanded into custody or alternatively be ordered to wear an ankle monitor until sentencing. The trial court denied these requests and set sentencing on October 15, 2020, allowing defendant over a month to file post-trial motions.

1 The victims’ initials, and those of certain family members, are used under the authority of La. R.S. 46:1844(W)(3), which allows this Court to protect the identity of a crime victim who is a minor or a victim of a sex offense. See State v. Greene, 06-667 (La. App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229 n.1, writ denied, 07-546 (La. 10/26/07), 966 So.2d 571.

[1–4] On October 8, 2020, defendant filed a motion to continue his sentencing date for sixty days, which was heard on October 15, 2020. The trial court denied the request. Defendant then filed a motion for new trial, which was denied on the ₂same date. Sentencing was reset to October 19, 2020, and at that time, the trial court sentenced defendant to imprisonment at hard labor for four years and six months on each felony count to run consecutively. The trial court also sentenced defendant to six months in parish prison on the misdemeanor count of sexual battery to run consecutively to the sentences on counts one through three for a total of fourteen years. Following sentencing, the trial court granted defendant’s motion for appeal. Defendant also filed a motion to reconsider his sentence, which the trial court denied on January 29, 2021. Defendant then filed another motion for appeal, which the trial court granted on February 8, 2021.²

2 Defendant appeals both his felony and misdemeanor convictions and sentences. This Court’s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287, citing La. Const. Art. 5 § 10; La. C.Cr.P. art. 912.1. Unless the punishment that may be imposed exceeds six months imprisonment and/or a fine of more than $1,000.00, a misdemeanor is not triable by a jury. State v. Flowers, 11-376 (La. App. 5 Cir. 12/13/11), 81 So.3d 910; La. C.Cr.P. art. 779. However, this Court has reviewed misdemeanor convictions and sentences on appeal when the misdemeanor and felony convictions are so intertwined that the interests of justice are better served by considering the matters together. State v. Carroll, 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486, 488 n.1. Accordingly, under the particular circumstances of this case, we find that judicial economy and the interests of justice are better served by considering defendant’s felony and misdemeanor convictions together.

Almost eight months later, on October 6, 2021, defendant filed a second motion for new trial pursuant to La. C.Cr.P. art. 851(B)(4) and (B)(5), alleging that he was entitled to a new trial based on newly discovery evidence of alleged juror misconduct. Defendant also filed a motion asking this Court to remand the matter back to the trial court to allow for a hearing on the motion for new trial pursuant to La. C.Cr.P. art. 853. On December 10, 2021, this Court entered an order granting the motion to remand "for consideration of the timeliness and, if appropriate, the merits of the motion for new trial."³ After conducting extensive evidentiary hearings on the issue of the timeliness of defendant’s second motion for new trial, the trial court ruled that the motion was timely. The State filed a writ application with this Court, and on August 24, 2022, this Court granted the State’s application and determined the second motion for new trial was untimely because it was not ₃filed and disposed of prior to sentencing as required by La. C.Cr.P. art. 853(A). See State v. Perilloux, 22-332 (La. App. 5 Cir. 8/24/22), 2022 WL 3714605, writ denied, 22-1452 (La. 11/22/22), 350 So.3d 502. This appeal follows.

3 Defendant also filed a motion to recuse the trial judge, Judge Dermis Waldron, alleging that he was a material witness to unrecorded, in chambers discussions regarding anonymous notes defendant received during the trial. Judge Waldron was recused on January 28, 2022. The Louisiana Supreme Court then appointed Judge Franz Zibilich to preside over the hearings on defendant’s second motion for new trial.

FACTS

This case involves allegations that defendant engaged in patterns of inappropriate behavior with young, teenage girls in an effort to groom them for escalated acts of inappropriate touching. At trial, the State presented evidence to establish that defendant, Elzey Jeffrey Perilloux, formerly a district court judge in St, John the Baptist Parish, committed acts of indecent behavior with juveniles, namely, A.G. (counts one and two), and E.H. (count three), who were his teenage daughters’ friends. The State also presented other crimes or bad acts evidence, including an allegation that defendant had also committed misdemeanor sexual battery upon S.B., who was another one of his daughters’ friends. All three counts of indecent behavior with juveniles, as well as the misdemeanor sexual battery upon S.B., were alleged to have occurred at defendant’s Louisiana residence between May and December 2017. In response, defendant and his daughters denied that he inappropriately touched A.G., E.H., or S.B.

Florida Encounter Prompting Disclosure of Prior Incidents in Louisiana

Victim, A.G., testified that at the time of the trial, she was eighteen years old and had graduated in 2020 from St. Charles Catholic High School. She explained that she had been lifelong friends with defendant’s daughter, Valerie, and also had a special relationship with defendant, who was like a second father to her. She first reported that defendant inappropriately touched her breasts shortly after a disturbing encounter with defendant during a trip to Florida in July 2017. A.G. was fifteen years old when she went on the trip with defendant, his two daughters, ₄Valerie and Dominique, and two other teenage girls, S.B. and Madison Sympson.⁴ Defendant was the only adult on the trip.

4 S.B. was Dominque’s best friend. S.B. testified that A.G. was like a little sister to her and she had known her since she was six years old. Ms. Sympson testified that she also went to St. Charles Catholic High School with defendant’s daughters, but they were not close friends. She testified that she went on the Florida trip because defendant invited her to go.

On the night of July 13, 2017, the girls decided that A.G. should ask defendant for a later curfew so they could go to the beach. A.G. recalled that she and Valerie went into defendant’s room and briefly talked to him, but then Valerie walked out because she did not want to be in the room when A.G. asked to extend their curfew. After Valerie left, defendant began playing with A.G.’s shirt and rubbing her stomach over her shirt while he was lying in bed. A.G. testified that defendant then began to slide his hand up under her shirt and that his fingers touched her when he moved them under her swimsuit bottoms and down towards the bottom of her swimsuit. A.G. backed up and said "no." Defendant then asked A.G. to "let me do your top," which A.G. believed to mean that he wanted to touch her "boobs." A.G. testified that after she backed away, defendant kept asking, "can I do your top?" and she continued to say, "no." She asked defendant if they could stay out later on the beach, and he again said, "let me do your top," and "I’m this close to saying yes." A.G. explained that she believed defendant was implying that if she allowed him to touch her, they would get a later curfew. A.G. then started walking away, and defendant stood up, grabbed her hand, and said, "don’t be scared; you don’t have to be scared." A.G. "kept saying no to what he kept asking [her] to do," and after a while, defendant sat back down on the bed and told her that she and the other girls could do whatever they wanted. A.G. testified that she was scared of defendant after this encounter.

After A.G. left defendant’s room, she told S.B. and Ms. Sympson about her encounter with defendant and how he had touched her. S.B. testified that A.G. ₅was "really red in the face" and crying so they went outside to talk. When S.B. asked A.G. for more details about where defendant touched her, A.G. put her hand near her swimsuit bottom and explained that defendant went in the front of her swimsuit bottom. S.B. then told A.G. she needed to calm down because Valerie and Dominique would be coming out and they did not want to have to tell them about what defendant did. A.G. told S.B. she did not want to tell anyone else what had happened, but S.B. knew they should report the incident. The next day, Ms. Sympson told her best friend, who was dating A.G.’s brother, about what had occurred between A.G. and defendant. When A.G.’s brother learned about the situation, he called A.G. and told her she had to tell their father and stepmother.

A.G. testified that the evening after the incident, she called her father and stepmother, who were vacationing, nearby, and told them. After they learned about her encounter with defendant, A.G.’s parents told her they were coming to pick her up and that she should wait for them at the Waffle House near the condominium where she was staying with defendant. A.G. testified that she told her parents not to contact the police because she did not want anyone to get in trouble. A.G. then told Valerie that she did not know what was going on, but that her parents needed to pick her up. While A.G. was packing to leave, defendant walked into her room, gave her a high five and asked "so we’re cool about what happened?"

A.G.’s parents contacted the police after they talked to her. Shortly after they arrived at the Waffle House, a police car pulled up. Detective Timothy Siren and Deputy Thomas Reitz of the Okaloosa County Sheriff’s Office in Florida arrived at the Waffle House and interviewed A.G. in the parking lot in the presence of her parents.⁵ At trial, A.G. testified that she told the officers that defendant went under her shirt and down into her swimsuit, but she, backed away before defendant ₆could touch her "private part." In the body camera video, A.G. began crying when officers asked her what happened. She told them that defendant put his hand under her shirt and started rubbing her stomach when she asked him to extend their curfew. A.G. also stated that she backed up, but he kept saying "let me do your top." She stated that she told him "no," that he grabbed her hand and told her not to be scared, and that she subsequently walked out of the room. When officers asked for additional information about what occurred, A.G. confirmed that defendant tried to go down into her bathing suit, but that she backed up before he could "do anything."

5 The interview was recorded on Deputy Reitz’s body camera. A.G.’s explanation of the incident in the video is similar to her trial testimony.

Counts One and Two – Indecent Behavior With a Juvenile – A.G.

A.G. also told the officers that defendant previously touched her before this incident in Florida, but that she did not report it and had been denying it because defendant was her best friend’s father. The officers did not ask A.G. for any additional details about the prior touching, but when one of the officers suggested that she was "blocking it out," A.G. agreed.

The following day on July 15, 2017, A.G. participated in a forensic interview with Cheryl Canipe at the Child Advocacy Center ("CAC") in Florida. A.G. testified at trial that she was scared and did not want to be there. After explaining the incident with defendant that occurred in the condominium on the evening of July 13, 2017,⁶ A.G. disclosed to Ms. Canipe that defendant had inappropriately touched her breasts on a prior occasion. A.G. explained that defendant was massaging her back and then "came in the front" and touched her breasts. When Ms. Canipe asked for details about where this occurred, A.G. first told her that she was at defendant’s house and that Valerie was sitting next to them, ₇but Valerie did not see what happened. She also told Ms. Canipe this happened one time and that it occurred a month or two ago. Later in the interview, Ms. Canipe asked for more details about where A.G. and Valerie were in defendant’s house when he was massaging A.G.’s back, A.G. then told Ms. Canipe that she and E.H.⁷ were in defendant’s room sitting on his bed and they decided to do a massage "train." She said Valerie was also sitting on the bed and then left. A.G. explained that she began massaging E.H.’s back, and defendant was massaging her (A.G.’s) back. Ms. Canipe did not ask for any further details regarding how defendant touched her breasts.

6 A video of the interview was played for the jury and A.G.’s discussion with the interviewer regarding the events that occurred in Florida was similar to her trial testimony and her interview with the Florida officers. A.G. did state for the first time during this CAC interview that defendant touched her near the top of her vagina, but further explained that she meant that defendant went under her swimsuit and then she backed away and told him "no" before he could go further down her bathing suit as she had explained during the prior interview.

7 As explained more fully below, E.H. was a schoolmate and lifelong friend of A.G. and Valerie.

At trial, A.G. testified that defendant touched her breasts on two different occasions at his house in Louisiana, and therefore, it was not accurate when she told Ms. Canipe that this only occurred one time. A.G. explained that she "put the two events together" during the Florida CAC interview, and when she participated in a second CAC interview in Louisiana in December 2017, she was better able to recall the two occasions when defendant touched her breasts.⁸ At trial, A.G. explained that when defendant touched her inappropriately the first time she was at defendant’s house in Laplace, Louisiana, on the sofa in the living room. Defendant came low with his hands on her chest, and his hands were inside of her bra and on her breasts for approximately ten seconds.

8 In her Louisiana CAC interview, A.G. said that her best friend’s father molested her and that it happened more than once. She explained that the first time defendant touched her breasts, she was on the sofa in the living room at his house and he was massaging her shoulders and neck. A.G. stated that he moved his hands down the front of her chest and his fingers were under her bra and over the top of her breasts. She told the interviewer that the second time defendant touched her breasts, she and E.H. were in defendant’s room and defendant was giving A.G. a massage and she was giving E.H. a massage. She recalled that defendant came further down on her breasts than the first time. A.G. explained that defendant’s fingers were touching her breasts for about thirty seconds during the massage and that defendant grabbed her breasts "full-on." She stated that after this incident, she realized what defendant was trying to do, but she was doubting herself and was not sure what to do.

A.G. testified that the second time defendant touched her breasts, she and her friend, E.H., were in defendant’s bedroom and defendant asked them if they wanted a massage. They responded affirmatively and engaged in a "massage train" ₈on his bed. A.G. recalled that they were massaging each other with E.H. in front of defendant and A.G. in front of E.H. A.G. stated that defendant then said to her, "let me do you now," so she and E.H. swapped places. She testified that during the massage, defendant moved his hands down "fully on my breasts" and that "his hands were on my nipples" under her bra for approximately fifteen to twenty seconds. E.H. was in front of her, and therefore, E.H. was not in a position to see what had happened.⁹ A.G. explained that she thought about telling someone after this occurred, but she was scared of being called a liar and losing her best friend, Valerie.

9 E.H. also testified regarding the "massage train" with A.G. and defendant. E.H. explained that they were in defendant’s bed and that defendant was only wearing his underwear (boxer briefs) at the time.

Count Three – Indecent Behavior With Juvenile – E.H.

The victim in count three, E.H., testified that she had known A.G. and Valerie since elementary school, and that she and Valerie were best friends who did everything together. E.H. testified at trial that she had a traumatic experience at defendant’s house when she was 14, when defendant applied sunscreen all over her body. She explained that she and Valerie wanted to play on a slip and slide outside. E.H. recalled that she and Valerie were about to apply the sunscreen, and defendant offered to help. E.H. said she told defendant "no" several times, but he insisted on applying the sunscreen on her. She stated that defendant "rubbed it all over me and I just completely froze. I tensed up and I stared out the window the whole time and he just rubbed it all over me." She further explained that defendant "went in the outline" of her sports bra and her shorts to apply the sunscreen. E.H. did not tell anyone what defendant did to her because she did not want to lose Valerie’s friendship and get defendant in trouble.

E.H. also underwent a CAC forensic interview in Louisiana on January 25, 2018. In that interview, E.H. explained that the slip and slide incident occurred in ₉July 2017, before the beach incident with A.G. E.H. stated that defendant used his hands and rubbed sunscreen all over her body, including her back, legs, stomach, arms, under the straps of her sports bra, and close to her bathing suit bottoms. She stated that defendant basically applied sunscreen on her "butt" and close to her "boobs." E.H. indicated with her hands that defendant touched her below her neck and shoulders on her chest, slightly above her breasts.

Misdemeanor Sexual Battery Charge – S.B.

S.B., the victim in the case involving the misdemeanor sexual battery count, testified that she was twenty years old at the time of trial and that she also graduated from St. Charles Catholic High School. S.B. testified that defendant’s daughter, Dominique, was her best friend since preschool, and that her mother had worked for defendant. S.B. also stated that defendant was like her second father. S.B. testified that in November or early December 2017, she slept over at Dominique’s house. Her throat was hurting badly and she thought she had a fever. S.B. asked Dominique for medicine and they went into the kitchen. Defendant then came into the kitchen in his underwear and they explained that S.B. had a sore throat. Defendant said he did not have pills or liquid medicine, but he had Vicks VapoRub.

S.B. then put the Vicks VapoRub on her throat, after which defendant took the medicine from her and told her she had to put it on her chest. S.B. was wearing a loose shirt without a bra, and defendant pulled her shirt open and stuck his hand in her shirt to put the Vicks VapoRub on her chest. S.B. explained that defendant then started touching the sides of her breasts. S.B. told him "no" several times and asked defendant to let her apply the medicine, but he told her "ho, no. I got it." Defendant applied several layers and S.B. told him he did not have put that much on. S.B. explained that she was so exhausted from being sick, and after several attempts to stop defendant, she "just let it kind of happen." S.B. did not think ₁₀defendant touched her accidentally and after this occurred, she realized that "maybe the whole time [A.G.] was telling the whole truth" and that she should have trusted A.G. and been there for her. S.B. explained that she stopped talking to A.G. after she made the allegations against defendant because she was scared to lose her friendship with Dominique and Valerie.

Dominique was present during the incident, but S.B. said she was looking at the ground in a "deep stare." S.B. admitted on cross-examination that she could have gone home because she lived nearby, but she did not want to wake up her family and have to explain what happened. She stated that she never spent the night at defendant’s house again, but she did ask for his help with a school assignment in- volving legal issues. S.B. testified that by coming forward about this incident, she lost her friendships with Dominique and Valerie, the two people she thought she would always have in her life.

Patterns of Grooming

Kim Madden testified on behalf of the State and was accepted by the trial court as an expert in the field of sexual abuse of children, forensic interviewing of children and grooming. Ms. Madden explained that grooming involved patterns of behavior in sexual abuse cases and is a process by which a sexual offender prepares a child, the child’s parent or caregiver, and the larger community for abuse of that child. She further explained that the point of grooming was to gain access to the child and to maintain secrecy and control of that child. Ms. Madden testified that she had personal experience with cases where children had been groomed by sexual offenders and she was familiar with the current literature on grooming.

She discussed a 2017 study by Winters and Jelic, in which the authors identified various stages of grooming, including victim selection, gaining access to the child, rapport and trust development, and systematic desensitization, which is ₁₁the gradual escalation of touching activities. She asserted that strategies an offender might utilize in rapport/trust development included giving compliments, giving gifts, and helping the child achieve a goal. She testified that there were many different nuances of touching, which may seem innocent, such as "let me assist you with homework," or "let me help you put on your coat." She also explained that grooming involved the systematic escalation of more intrusive sexual behaviors targeted at the individual child, such as sexualized communications and comments. For older children, drugs or alcohol could be provided to establish trust and rapport and to put the child in a "disclosure bind," i.e., where the child accepts the drugs or alcohol, and it becomes part of the sexual offense. Ms. Madden stated that the studies indicated approximately fifty percent of child sexual abuse cases involved grooming.

Ms. Madden also testified that if a child is questioned by different people, one very often hears accounts of an event with varying details because children are influenced by questioners. She explained that it was a common for children to sometimes recall different aspects of abuse at different times. Ms. Madden reviewed the questions asked by the CAC interviewers in Florida and Louisiana of A.G. and E.H. and indicated that she would have asked similar questions.

Ms. Madden also explained that she dealt with cases involving delayed disclosure, which often occurred due to the child being embarrassed, ashamed, scared, or guilty. She explained that a child might initially go along with the activity, but then after it escalated, the child would be unsure of how to extricate herself and may not feel confident that anyone would believe her. Ms. Madden asserted that approximately twenty-five percent of people who, experienced abuse did not say anything while they were children. She explained that she frequently encounters children who are reluctant to report abuse and that it was a common phenomenon.

₁₂Dr. Nancy Aldridge testified on behalf of defendant and the trial court accepted her as an expert in the fields of child sexual abuse, forensic interviewing and protocol, forensic examination, child psychology, and grooming. Dr. Aldridge testified regarding false sexual abuse allegations and explained that the percentage of false allegations by teenagers was greater than the percentage of false allegations by young children. She further testified that false allegations could be unintentional due to confusion or misinterpretation, or intentional. Dr. Aldridge submitted that alcohol could affect the child’s perception and recall of what occurred. She also explained that it was possible that a teenager’s memory could be tainted by different influences, particularly when abuse was being investigated.

Dr. Aldridge testified that she had reviewed the two interviews of A.G. by the CAC in Florida and in Louisiana, the New Orleans CAC interview of E.H., and the Louisiana State Police interview of S.B., in addition to all investigative reports from Florida and Louisiana, She explained that after reviewing those interviews, it was her opinion that parts of the protocol for conducting interviews were not followed and that areas that should have been followed up on were not. She claimed that in some of the interviews, the forensic interviewer repeated back to the child something the child did not say and introduced information that did not come from the child. She also submitted that an interviewer should not continue to ask the same question when a child has already said she did not know the answer.

When asked about grooming, Dr. Aldridge testified that grooming could occur in fifty percent of the cases, but there could be sexual abuse without grooming. She explained that grooming behaviors could be actions that were innocent and did not have the ultimate goal of abusing the child. Dr. Aldridge testified that generally when adolescents had been sexually abused, they try to avoid the persons who abused them and might express fear or hesitation to be around them.

₁₃The victims in the present matter. A.G., E.H., and S.B., as well as Ms. Sympson, who went on the Florida trip, all testified regarding unusual patterns of behavior and interactions they experienced with defendant leading up to the incidents of inappropriate touching. A.G. stated that defendant asked what her favorite curse word was, after which he licked his lips and said, "mine’s p*ssy." Defendant also told A.G. that she could come visit him at his house anytime, even if Valerie was not there. A.G. discussed that defendant frequently sent her text messages, including messages with heart emojis and compliments, as well as messages stating "I love you" and telling A.G. that she was beautiful. A.G. also testified regarding a video she recorded of defendant with his head on her shoulder while they were sitting on a sofa at defendant’s house.¹⁰ Defendant can be heard on the video asking if he was being recorded. A.G. testified that she responded no and defendant said "good, don’t," but that she was in fact recording defendant.

10 The State contends that the video actually shows defendant with his head in A.G.’s, lap and that defendant kissed A.G.’s leg in the video.

E.H. also explained during her CAC interview that defendant treated her and A.G. like his daughters. E.H. stated that defendant would bring them places like the movies or the store, give them money, say "I love you," and give them massages and kisses on their cheeks. E.H. stated that when defendant said he loved her, it made her feel uncomfortable. E.H. recalled that one time when she and A.G. were at the store, defendant patted her on the "butt" on top of her clothes. She also recalled that defendant patted AG. on the "butt" one time, and they talked about how it was "weird" that he did this.

S.B. testified that defendant gave her money at times, and that she and defendant texted and called each other. She testified that defendant’s text messages sometimes made her feel uncomfortable, and some included random curse words, "like the P word or the F word," or a phrase with curse words in it. ₁₄S.B. also testified that defendant made comments on the Florida trip that she thought were strange or made her uncomfortable, including a comment about either her or the group of girls having cute "butts." S.B. also witnessed defendant giving massages to A.G. and others.

Ms. Sympson testified that defendant began communicating with her via text messages and she thought it was unusual for her friends’ father to text her. At trial, Ms. Sympson identified text messages between herself and defendant, which included hearts and comments where defendant stated "lov u" and that Ms. Sympson was his "fav" and he was her "biggest fan." Defendant also told her that he was covering all expenses for food and activities for the Florida trip.

Ms. Sympson also recalled an incident while working one summer at Riverlands Country Club. Defendant texted her and said he wanted to do something nice for her like bring her ice cream. She told him he did not have to do that; however, she said that he later came to the snack shack by the pool and gave her $100.00. She said she was scared to tell her parents and thought she would get in trouble for accepting the money. She also recalled that defendant would give her massages or a side hug when she saw him in public. Ms. Sympson testified that she always thought defendant was "creepy," but she did not say anything.

Defense Testimony

After the State rested its case, defendant testified on his own behalf. Defendant explained to the jury that he graduated from law school in 1993, after which he practiced law, worked for the St. John the Baptist Parish District Attorney’s Office, and eventually was elected district court judge and took office on January 1, 2017. Defendant admitted that he was arrested for DWI in 1999, after which he pled guilty under La. C.Cr.P. art. 894, and later had the conviction expunged. He also admitted that he was arrested for a second DWI in 2010, pled guilty under Article 894, and later had that conviction expunged as well. ₁₅Defendant explained that he underwent rehabilitation afterward and that he had been sober for ten years.

Defendant testified that he had never been alone with A.G., S.B., or E.H. and that he treated them like, his daughters. He stated that he started engaging in text messages with A.G. in 2015, and recalled that after A.G.’s mother died, her father began dating another woman. He testified that A.G. asked to move in with him and his family one month before A.G.’s father remarried in April 2017.

Defendant testified that his daughters and the other girls worked together at Riverlands Country Club and that he invited all of them oh the Florida trip. He further testified that the subject of alcohol came up on the Florida trip, that S.B. asked for alcohol, and that he said "no." He stated that A.G. then said her parents let her have beer and daiquiris occasionally, and Ms. Sympson told him that her mother sometimes let her have one drink when she was with an adult.¹¹ Defendant testified that based on the girls’ requests, he bought some pre-made frozen daiquiris and two small bottles of a fruit-type drink. He was not aware that A.G. had brought a pint of Malibu rum on the trip.¹² Defendant maintained that he allowed his daughters to drink alcohol on that Florida trip, but other than that he did not allow them to drink.

11 Ms. Sympson testified that defendant asked if her parents allowed her to drink alcohol and she responded, "no," after which defendant said that it would be their "little secret." S.B. testified that she and Dominique asked defendant for daiquiri or margarita pouches, after which defendant asked every-one what they wanted. She recalled that defendant bought a lot of extra alcohol, including two or three bottles of wine. She did not know why he did this, explaining that none of them drank wine or wanted it. S.B. testified that defendant had never provided alcohol before that time as he was very much against Dominique and Valerie drinking.

12 Valerie testified that A.G. brought a little pint of Malibu rum on the trip, but she was not drinking it on the night of the incident with defendant. A.G. testified that she could not recall if she brought alcohol on the trip, but it would not surprise her if she did. She also testified that she was not drinking or drunk when she went into defendant’s room to ask for the curfew extension.

Defendant testified that on the second evening of the Florida trip, he decided that the curfew would be 11:00 p.m. Around that time, he was sleeping and was awakened by someone saying "wake up, wake up." He stated that he "jumped" to find out what was going on and reached over to find his cell phone to have light to ₁₆see who was in the dark room. Defendant testified that as he reached for his cell phone, he heard A.G. say it was her and that they wanted a later curfew. He further testified that he told her 11:00 p.m. was good enough, that A.G. said "please" several times, and that he changed his mind and gave them thirty more minutes. He stated that A.G. then left the room and he went back to sleep. Defendant stated that it was possible he had contact with A.G. when he reached for his phone. Defendant insisted he did not do any of the things A.G. had accused him of and that he had no intention to touch her inappropriately in a lewd or lascivious manner in an effort to arouse his own sexual desires.

Defendant testified that the next day, nothing seemed out of the ordinary. He recalled that later in the day, he was in bed sleeping when Valerie and A.G. came in and woke him up, and that Valerie told him A.G. was leaving due to a family emergency. Early the next morning, he received a call from detectives from the Okaloosa County Sheriff’s Office that they were coming to his condo. He recalled that the police arrived and that he answered their questions about A.G. without a lawyer present. Defendant testified that they did not read him his rights. He asserted that he told the police that in the process of reaching for his phone, it was possible that he may have brushed up against A.G. Defendant recalled that the police also talked to the girls and that the police indicated that the parents of Ms. Sympson and S.B. would prefer for them not to stay, so they left. He testified that his ex-wife came to the condo the next day, that she spent the night, and that he, his daughters, and his ex-wife left the next day. Defendant testified that he never heard from the Florida detectives again.

As to count one, defendant testified that he had given A.G. neck rubs, but he did not reach over with his hands and touch A.G.’s breasts during the June incident at his house. He stated that he never asked A.G. if he could give, her a neck rub and that generally A.G. would ask for them. As to count two, defendant testified ₁₇that he did not engage in a "massage train" and that during that incident, E.H. was seated in front of A.G. and that he never touched E.H. Defendant also explained that he did not reach down over the top of A.G. from behind and place his hands over her breasts and nipples. He also denied that he was only wearing underwear at the time. Defendant recalled that in June after this alleged incident, A.G. sent him a Happy Father’s Day text. As to the slip and slide incident at issue in count three, defendant testified that he put sunscreen on E.H.’s back, but did not put any on her stomach or legs. With respect to the Vicks VapoRub incident with S.B., defendant testified that he did not touch S.B.’s breasts. He recalled that Dominique was standing right next to him when he pulled S.B.’s shirt open to put VapoRub on the bottom of her neck and down a little bit on the top of her chest. He denied that S.B, told him not to do that.

Defendant also denied that his behavior with any of the girls constituted grooming. Defendant claimed that in the video of him on the couch, he was laying on his daughter Valerie’s lap, hot A.G.’s lap, and that A.G. took a video of him and Valerie. He asked her if she was recording because he did not like to be videotaped. Defendant testified that he often engaged in chain texts with his daughters and A.G. Defendant also admitted to giving $100.00 to Ms. Sympson at the end of May or early June 2017, because he wanted to do something nice for her as she was an honor roll recipient and had worn his campaign shirt throughout his campaign for judge. He denied trying to groom Ms. Sympson to put her in a position to sexually assault her.

Valerie testified that she and A.G. were formerly best friends, but did not speak anymore. She said A.G. had a difficult time after her mother died and A.G. told her in the summer of 2016 that she was depressed and wanted to move in with ₁₈her because she did not like her family home.¹³ Valerie testified that between May 2017 and the Florida trip in July 2017, A.G. spent the night at her house approximately fifteen to twenty times.

13 A.G. admitted on cross-examination that she told her friends that she hated her step-mother.

Valerie and Dominique testified that during the Florida trip, they did not notice anything unusual after A.G. asked for the curfew extension and Valerie did not see A.G. crying. They both explained that after A.G. asked for the curfew extension, they all went to the beach that night and had a good time. They also enjoyed the following day on the beach together. Valerie testified that during the evening A.G. received a phone call and that she heard A.G. crying and screaming that she did not want to leave. After A.G. ended the call, Valerie asked her what was happening and A.G. told her she had to leave because of a family emergency.

Valerie stated that approximately one month after the Florida trip, she and A.G. met at a park, Valerie asserted that A.G. told her how much she loved defendant and everything he did for her, that she wanted to come back to their house and have everything be normal again, but that her parents would not allow it. Valerie also insisted that defendant’s head was in her lap in the video on the couch.

Valerie also testified that with respect to the slip and slide incident in May 2017, defendant put sunscreen on her and E.H.’s back, but she did not remember E.H. telling him "no" or that she would put it on herself. Valerie also recalled that in May or June 2017, she was in the den at her house when her father gave A.G. a shoulder rub. She explained that A.G. was always complaining that her shoulders were tense and that her neck was hurting her, so A.G. would ask defendant to rub her shoulders. Valerie recalled that she was on the recliner near the couch where A.G. was sitting. She claimed that defendant was rubbing A.G.’s shoulders at the top only, and despite the fact that she was on her phone, she could see out of the corner of her eye that nothing unusual was going on. Valerie testified that if she ₁₉had seen her father do something inappropriate, she would have confronted him about it and told her mother.

Dominique testified that in December 2017, S.B. spent the night at her house. She remembered S.B, saying that her throat was scratchy and that she was congested. Dominique asked S.B. if she wanted some medicine and when S.B. said yes, she got up to see what was in the cabinet. Dominique did not see any liquid medicine or pills, so she went into her father’s room, woke him up, and asked if he had any medicine that might help S.B. Dominique testified that defendant got up, walked to the kitchen, opened the cabinet, and said that he had Vicks VapoRub. She recalled defendant asking S.B. if she wanted him to put some on her and that S.B. said, "yes, please." Dominique testified that defendant put some Vicks VapoRub on S.B.’s throat and a little bit on her chest, but nowhere near S.B.’s breasts in a five to ten second interaction. She did not hear S.B. telling her father, "no, don’t do that," or "stop." Dominique testified that S.B. did not seem upset. She further explained that S.B. lived about four houses down from her house at that time and could have gone home if she was upset.

DISCUSSION

Sufficiency of Evidence

[5–7] We first address defendant’s claim that the State failed to produce sufficient evidence to prove that a crime occurred.¹⁴ Defendant argues that the admissible evidence does not establish that anything inappropriate, much less sexual, occurred during the charged offenses, and they do not constitute a crime, in and of themselves, absent an intent on his part for sexual gratification. He argues that ₂₀witnesses were present at the time the offenses occurred and they did not notice or report that anything inappropriate occurred. Defendant contends that it was only after months of questioning that E.H. and S.B. recast harmless incidents as inappropriate and sexual in nature. He also complains that his words and actions were improperly characterized as grooming by means of inadmissible expert testimony.¹⁵

14 When issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the evidence in its entirety. State v. Hearold, 603 So.2d 731, 734 (La. 1992). The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. Id. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, including evidence that was erroneously admitted, to determine whether the evidence is sufficient to support the conviction. Id.

15 As discussed more fully below, we find that the trial court did not err by allowing State’s expert, Kim Madden, to testify regarding grooming behaviors used to gain trust prior to sexually abusing children.

[8–10] In reviewing the sufficiency of the evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 UK 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 provides the following rule: "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." The reviewing court is not required to determine whether a defendant’s suggested hypothesis of innocence offers an exculpatory explanation of events. Rather, the reviewing court must evaluate the evidence in the light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16), 190 So.3d 1189.

The jury found defendant guilty of two counts of indecent behavior with a juvenile, A.G. (counts one and two) and one count of indecent behavior with a ₂₁juvenile, E.H. (count three) in violation of La. R.S. 14:81, which provides in pertinent part:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person;

(1) 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. Lack of knowledge of the child’s age shall not be a defense[.]

[11, 12] Accordingly, to convict a defendant of indecent behavior with a juvenile under La. R.S. 14:81, the State must prove: (1) an age difference of greater than two years between the accused and the victim, who was not yet seventeen; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child; and (3) the accused intended to arouse or gratify either his own or the victim’s sexual desires. State v. Battaglia, 03-692 (La. App. 5 Cir. 11/25/03), 861 So.2d 704, 708, writ denied, 04-1701 (La; 4/29/05), 901 So.2d 1058. A lewd or lascivious act is defined as "one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner." State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 291, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154.

[13–15] In determining whether an act is lewd or lascivious, the trier of fact must consider the time, the place, and all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Domangue, 12-760 (La. App. 5 Cir. 5/23/13), 119 So.3d 690, 695. Indecent behavior with a juvenile is a specific intent crime for which the State must prove the offender’s intent to arouse or gratify his sexual desires by his actions involving a child. State v. Borden, 07-396 (La. App. 5 Cir. 5/27/08), 986 So.2d 158, 166, writ denied, 08-1528 (La. 3/4/09), 3 So.3d 470. Specific intent to commit indecent ₂₂behavior with a juvenile may be inferred from the circumstances and actions of the defendant. Domangue, 119 So.3d at 696.

To convict a defendant of misdemeanor sexual battery in violation of La. R.S. 43.1.1, the State must prove "the intentional touching of the breasts or buttocks of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing … when the offender acts without the consent of the victim." [16] In the present matter, defendant challenges the second and third elements of his convictions for indecent behavior with a juvenile by claiming he did not commit a lewd or lascivious, act upon A.G. or E.H., and the evidence does not prove he intended to arouse or gratify either his own or the victim’s sexual desires. At trial, A.G. testified that defendant touched her breasts while giving her a massage two different times. A.G. explained that the first time, defendant was giving her a neck and shoulder massage, when he moved his hands down inside the front of her bra and over her breasts. A.G. testified that the second time, she and E.H. were in defendant’s bedroom, where all three engaged in a "massage train." A.G. explained that defendant "went fully on my breasts" and that "his hands were on my nipples" inside the front of her shirt under her bra.

[17] E.H. testified that when she was fourteen years old, she was at defendant’s house with his daughter, Valerie, and defendant applied sunscreen all over her body. Although E.H. told defendant numerous times that she could put the sunscreen on herself, defendant insisted on applying the sunscreen, even in places E.H. could reach herself. In her CAC interview, E.H. explained that defendant used his hands to rub sunscreen all over her body, including her back, legs, stomach, arms, and close to her buttocks and breasts.

[18] ₂₃With respect to the misdemeanor sexual battery charge, S.B. testified that defendant applied Vicks VapoRub to her chest and touched the sides of her breasts despite asking defendant to stop numerous times.

Experts for both the State and defendant testified that child abusers groom their victims prior to the abuse in approximately fifty percent (50%) of the reported cases. The State’s expert explained that in order to establish rapport and trust with a child prior to the abuse, an offender might give the child compliments, gifts, money, alcohol, or assist with a goal. The expert also explained that child sex offenders engage in a pattern of behavior to gradually escalate the offender’s access to the victim and to desensitize the child prior to engaging in more intrusive sexual behaviors.

The jury viewed photos, watched videos, read text messages and heard testimony from victims, A.G., E.H. and S.B., as well as their friend, Madison Sympson, regarding defendant’s pattern of inappropriate behavior with young teenage girls that could be considered as grooming, including: 1) defendant asking A.G. her favorite curse word and then responding that his favorite word was p*ssy after licking his lips; 2) numerous text messages defendant sent to A.G. and Ms. Sympson stating that he loved them, and that contained compliments, heart emojis, and curse words; 3) a video of defendant lying on the couch with A.G.; 4) testimony that defendant gave Ms. Sympson money, invited her on the Florida trip, and gave the girls alcohol; 5) testimony by E.H. that defendant patted her and A.G.’s buttocks; and 6) testimony regarding how defendant asked to give these girls massages and told A.G. she could come to his home even when his daughters were not there. In addition, A.G. testified that during their trip to Florida, one night she asked to extend their curfew, and defendant touched her stomach with his hand, went under her shirt, started going down into her swimsuit bottom, and repeatedly asked to touch her "top," in exchange for extending their curfew.

[19–21] ₂₄The jury obviously believed the victims and rejected the testimony of defendant and his witnesses. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745. The victim’s testimony alone can be sufficient to establish the elements of a sexual Offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. State v. Lestrick, 13-289 (La. App. 5 Cir. 10/9/13), 128 So.3d 421, 430, writ denied, 13-2643 (La. 4/25/14), 138 So.3d 643.

After reviewing the victim’s testimony and evidence of defendant’s pattern of grooming behavior, we find that a rational trier of fact could have found the evidence was sufficient under the Jackson standard to support defendant’s two convictions for indecent behavior with A.G. Defendant’s acts of touching A.G.’s breasts constitute lewd and lascivious acts, and prove his specific intent to arouse or gratify sexual desire. See State v. Shaikh, 16-750 (La. 10/18/17), 236 So.3d 1206, 1208, citing State v. Forbes, 97-1839 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, 427 (finding a rational trier of fact can conclude that the defendant committed a lewd and lascivious act by reaching under the victim’s t-shirt and touching her breasts and reaching into her underpants and touching the area below her naval hear her vagina).

Similarly, a rational trier of fact could have found the evidence was sufficient under the Jackson standard to support defendant’s conviction for indecent behavior with E.H. by finding that defendant’s acts of rubbing sunscreen ₂₅all over E.H.’s body and close to her buttocks and breasts constitute lewd and lascivious acts with the intent to arouse or gratify sexual desire. Defendant’s actions and behavior indicate that defendant engaged in a pattern of building trust with his daughter’s young friends and a gradual desensitization to inappropriate touching that led to the acts of indecent behavior with a juvenile charged in this matter. The evidence establishes that defendant engaged in a pattern of grooming behavior with E.H., including patting her on the butt, massaging her neck and shoulders during the "massage train" on his bed while only wearing his underwear, and telling E.H. "love you," and giving her money, all which infer that his ultimate goal was to create the opportunity to gratify his sexual desires by touching and rubbing E.H. See Shaikh, supra (Louisiana Supreme Court found that a rational trier of fact could have found that the evidence was sufficient to support the conviction of indecent behavior with a juvenile where the defendant rubbed the thirteen-year-old victim’s thigh, slapped her on her rear end, professed his love for her, and invited her to spend the night with him.)

Finally, we find that a rational trier of fact could have found the evidence was sufficient under the Jackson standard to support defendant’s conviction for misdemeanor sexual battery of S.B. She testified that defendant’s hand touched the side of her breasts while applying the Vicks VapoRub and she repeatedly told defendant to stop. Accordingly, we find that sufficient evidence exists to support defendant’s convictions.

Expert Testimony on Grooming

[22] Defendant also complains that the trial court erred by allowing expert testimony on the concept of grooming without first conducting a Daubert ¹⁶ hearing to test its reliability.

16 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993).

₂₆La. C.E. art. 702 governs the admissibility of expert testimony and provides:

A. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue:

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts of the case.

[23] In State v. Foret, 628 So.2d 1116 (La. 1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony, which require the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Boudoin, 11-967 (La; App. 5 Cir. 12/27/12), 106 So.3d 1213, 1225, writ denied, 13-255 (La. 8/30/13), 120 So.3d 260. The Daubert inquiry consists of four considerations: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted by the relevant scientific community. Id.

[24, 25] The trial court in its discretion can determine, on a case-by-case basis, if a Daubert hearing is necessary to test the reliability of expert testimony. State v. Chauvin, 02-1188 (La. 5/20/03), 846 So.2d 697, 709. A trial judge’s decision to qualify an expert witness or to admit or exclude certain expert testimony is subject to an abuse of discretion standard. State v. Stokes, 99-1287 (La. App. 5 Cir. 4/13/00), 759 So.2d 980, 984, writ denied, 00-1219 (La. 2/16/01), 802 So.2d 607.

₂₇On March 12, 2020, the State filed a motion in limine asking the trial court to allow expert testimony to explain the general concept of grooming and delayed reporting/disclosure of abuse in child sexual abuse cases. In response, defendant filed a motion for a Daubert hearing seeking to limit the testimony of the State’s expert, Kim Madden, based on defendant’s conclusory claim that testimony on this issue is unreliable. At the June 12, 2020 hearing, the State explained that it only intended to introduce expert testimony on the general concept of grooming and would not elicit any specific testimony analyzing defendant’s behavior in this matter. Defense counsel responded that expert testimony on this issue was not necessary because it involved common sense issues and would not assist the jury.

Following oral argument, the trial court granted the State’s motion in limine to allow general expert testimony on grooming and denied defendant’s request for a Daubert hearing. The trial court determined that the export testimony would assist the jury and further found that a Daubert hearing was not necessary to test the reliability of the expert testimony as Louisiana courts recognized the general concept of grooming in child sex abuse matters. The trial court further acknowledged its gatekeeper function and indicated that it would not allow the expert to provide opinions regarding whether any of defendant’s acts, at issue in this case constituted grooming.

At trial, Ms. Madden explained generally that grooming was a process of preparing a child for sexual abuse by engaging in behavior to gain access to the child and maintain secrecy and control of the child. Ms. Madden outlined the stages of grooming identified by the accepted literature and indicated that fifty percent of child abuse cases involve acts of grooming by the perpetrator. She also provided general examples of grooming, such as the giving money, gifts, or compliments, and providing alcohol; but offered no opinion as to whether defendant’s actions or behavior with the victims constituted grooming. ₂₈Defendant’s expert, Dr. Aldridge, similarly recognized that grooming can be a part of preparing a child for sexual abuse and agreed it occurs in almost fifty percent of child sex abuse cases.

Defendant does not contest Ms. Madden’s qualifications as an expert or even raise specific arguments to contest the reliability of her testimony; he only contends that the trial court erred by allowing Ms. Madden to testify about grooming without first conducting a Daubert hearing. Defendant fails to explain why a Daubert hearing was necessary, particularly when both experts agreed to the relevancy of grooming in child sex abuse cases. The concept of grooming is not a matter of common sense as defendant argues; rather, the expert’s testimony was important to assist the jury in evaluating the evidence. Further, the trial court allowed defendant an unlimited opportunity at trial to question Ms. Madden regarding her methodologies and qualifications and he did not elicit any information that would lead this Court to question the reliability of her testimony on grooming.

Based on the foregoing, we find that the trial court did not abuse its discretion by denying defendant’s request for a Daubert hearing and by allowing the State’s expert, Ms. Madden, to testify about the general concept of grooming - her testimony was relevant, reliable, and assisted the jury in analyzing the evidence.

Bad Acts and Other Crimes Evidence

[26] In his next assignment of error, defendant argues that the trial court erred by allotting the State to admit evidence of bad acts and other crimes because the evidence did not involve sexually assaultive behavior or indicate a lustful disposition toward children. Defendant contends that the sole purpose of this evidence was to paint him as a person of bad character, which is prohibited under La. C.Cr.P. art. 404(A). He maintains that the bad acts and other crimes evidence ₂₉overwhelmed the scant evidence offered by the State regarding the actual charges against him and he contends the prejudice resulting from this evidence entitles him to a new trial.

This Court previously engaged in, an extensive review of the admissibility of this disputed evidence in our review of defendant’s writ application in State v. Perilloux, 19-K-17 (La. App. 5 Cir. 3/8/19) (unpublished writ decision), writ denied, 19-KK-551 (La. 5/28/19). In his writ application, defendant argued that the trial court abused its discretion by allowing the State to introduce the following evidence pursuant to La. C.E. arts. 404(B) and 412.2:¹⁷1) evidence regarding the June 2017 incident in Florida where A.G. accused defendant of rubbing her stomach, placing his hand under her T-shirt, and putting his fingers inside her bikini bottom; 2) testimony that defendant purchased alcohol for minors during the June 2017 Florida trip; 3) text messages between defendant, A.G., and Ms. Sympson; 4) images transmitted by defendant of his bare legs with three heart emojis; 5) a photo taken by defendant of A.G. climbing to reach a zip-line in Florida; 6) a video of defendant lying on the couch with A.G.; 7) statements made by defendant to Ms. Sympson that he wanted to take her out to eat and "wanted to do something nice for her" after giving her $100.00; 8) testimony from E.H. that defendant patted the buttocks of both A.G. and E.H.; and 9) S.B.’s testimony that defendant applied VapoRub to her chest and touched the side of her breasts without her consent.

17 La. C.E. art. 412.2(A) provides that "[w]hen 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."

The trial court determined that all of this evidence was highly relevant, probative, and not substantially outweighed by prejudicial effect. After a lengthy analysis, this Court agreed that each of these items was admissible under ₃₀La. C.E. arts. 404(B) and/or 412.2 as evidence of either defendant’s lustful disposition toward children or other crimes, wrongs or acts with young teenage girls. This Court further recognized that certain items were admissible as evidence of grooming. Accordingly, this Court found that the trial court did not abuse its discretion by allowing the State to admit this evidence at trial.

[27–29] Under the doctrine of "law of the case," an appellate court will generally decline to consider its own rulings of law on a subsequent appeal in the same case. State v. Allen, 17-685 (La. App. 5 Cir. 5/16/18), 247 So.3d 179, 185, writ denied, 18-1042 (La. 11/5/18), 255 So.3d 998. The law of the case doctrine is discretionary. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Falcon, 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 87-88, writ denied, 14-769 (La. 11/14/14), 152 So.3d 877.

After considering defendant’s arguments and the evidence presented at trial, we find that reconsideration of this Court’s prior ruling in Perilloux, 19-K-17, is not warranted. Our prior ruling was not patently erroneous and did not produce unjust results.

Denial of Right to Present a Defense

Defendant next argues that in contrast to the admission of "bad character" evidence discussed above, the trial court denied his right to present a defense by prohibiting him from introducing critical evidence to demonstrate his innocence. He specifically contends that the trial court abused its discretion by prohibiting him from introducing the following evidence: 1) Florida investigative authorities’ determination that no probable cause existed to proceed with A.G.’s report of sexual abuse in Florida; 2) A.G.’s report of physical abuse by her father; 3) denial of initial requests for search warrants by Louisiana law enforcement; and 4) defendant’s polygraph test results regarding the Florida incident.

[30, 31] ₃₁A defendant’s right to present a defense is guaranteed by the Sixth Amendment of the United States Constitu- tion and Article I, § 16 of the Louisiana Constitution. This right, however, does not necessitate that a trial court allow the introduction of evidence that is inadmissible, irrelevant, or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La. 2/22/13), 108 So.3d 763.

Search Warrant

[32] First, Louisiana State Trooper Raymond Hughes testified on cross-examination at trial that a judge denied his request for a warrant to search defendant’s home due to the lack of probable cause. Thus, the jury heard this evidence and the issue is without merit.

No Probable Cause – Florida Incident

[33] Defendant next contends that he was prejudiced because he could not introduce evidence regarding Florida authorities’ determination that no probable cause existed to charge defendant as a result of A.G.’s allegations against him during the Florida trip. Defendant contends that the exclusion of this evidence precluded him from challenging A.G.’s credibility. This Court previously considered and rejected defendant’s challenge to the trial court’s determination to exclude this evidence. Perilloux, 19-K-17, supra. This Court recognized that pursuant to La. C.E. art. 412.2, the evidence was irrelevant because it is not necessary that a defendant be charged, prosecuted, or convicted in order to introduce evidence of acts indicating a lustful disposition toward children. Id This Court further observed that defendant failed to submit proof of the extent of the Florida law enforcement’s investigations or findings.

[34] Subsequently, on October 3, 2019, defendant requested that the trial court reconsider its ruling on this issue and attached a copy of an Okaloosa County ₃₂Sheriff’s Office police report in support.¹⁸ At a hearing held on October 7, 2019, defense counsel argued that Florida authorities did not arrest defendant because A.G. provided inconsistent statements and as a result, the Florida officers did not believe her. Counsel argued that it was necessary for the defense to ask these officers if they believed A.G. in order to address her credibility. The trial court denied defendant’s request to reconsider its ruling on this issue, but ruled that defendant could address A.G.’s credibility by questioning her and the Florida officers regarding any inconsistent statements provided by A.G. The trial court further explained that it would not allow defendant to ask the officers if they believed A.G. or why they did not arrest defendant because it would be improper to ask for their opinion and such testimony would be more prejudicial than probative pursuant to La. C.E. art. 403. Defendant filed another writ application and this Court again denied relator’s request for relief finding that the trial court did not abuse its discretion for maintaining its prior ruling noting the reasons stated above by the trial court. State y. Perilloux, 19-K-509 (La. App. 5 Cir. 11/12/19) (unpublished writ decision).

18 Defendant did not offer and the trial court did not accept the police report attached to defendant’s memorandum into evidence at the October 7, 2019 hearing. Exhibits and attachments not properly and officially offered and admitted into evidence cannot be considered, even if it is physically filed into the trial court record. State v. Whitley, 14-737 (La. App. 5 Cir. 3/25/15), 169 So.3d 658, 660, citing Denoux v. Vessel Management. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88.

Based on the "law of the case" doctrine, we conclude that reconsideration of this Court’s prior rulings is not warranted as the trial record does not contain any new facts or evidence indicating that this Court’s prior determination was patently erroneous or produced unjust results. See Allen, supra; Falcon, supra. We further observe that at trial, defendant conducted extensive cross-examination of A.G. and the other minors who were present during the Florida trip regarding A.G.’s allegations, and had the opportunity to question Detective Siren and Deputy Reitz, ₃₃who responded to the scene in, Florida, about their discussions and interactions with A.G. that night.

Polygraph Test

[35, 36] We next address defendant’s argument that the trial court abused its discretion by excluding evidence of a polygraph test he took regarding the Florida incident. The Louisiana Supreme Court has long adhered to the view that lie detector or polygraph test results, or any reference that a witness has taken a polygraph test, are inadmissible for any purpose at the trial of guilt or innocence in criminal cases. State v. Cowart, 01-1178 (La. App. 5 Cir. 3/26/02), 815 So.2d 275, 286, writ denied, 02-1457 (La. 5/9/03), 843 So.2d 387. The trial court did not abuse its discretion by denying evidence of defendant’s polygraph test results.

Physical Abuse

[37] Defendant finally contends that the trial court denied his right to present a defense by prohibiting him from introducing evidence that A.G. made an unfounded or invalid allegation of physical abuse against her father in the same interview where she made two allegations that defendant inappropriately touched her in Louisiana. He argues that this was relevant, admissible evidence for the jury to consider when addressing A.G.’s credibility.

Relevant evidence is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403; State v. Gomez-Colon, 20-302 (La. App. 5 Cir. 12/22/21), 334 So.3d 975, 984, writ denied, 22-125 (La. 4/20/22), 336 So.3d 466.

₃₄We disagree that A.G.’s physical abuse allegation against her father has any significant connection or relevance to her allegations that defendant touched her breasts on two different occasions in Louisiana while massaging her shoulders. As explained above, A.G. discussed the two incidents involving defendant during her December 22, 2017 interview that was instigated as a result of the physical abuse claim. However, A.G. had previously raised the Louisiana incidents involving defendant during her initial interview with the Florida officers and in the July 15, 2017 CAC Florida interview. Accordingly, we find that A.G.’s report against her father is not relevant to her reports of sexual abuse by defendant.¹⁹ Prosecutorial Misconduct

19 Our review of the record indicates that at a closed hearing on June 26, 2020, the trial judge reviewed the content of the records regarding A.G.’s allegations against her father with defendant and all counsel. The records indicated that A.G. reported that her father grabbed her during an argument while they were riding in a vehicle, and the Department of Child and Family Services concluded that no physical abuse occurred. The trial judge found that there was nothing of an exculpatory or contradictory nature in the records, and that any incident between A.G. and her father was irrelevant to the instant case.

[38] Defendant next contends that prosecutorial misconduct that allegedly occurred throughout the proceedings mandates a new trial. Defendant specifically cites to the following conduct in support of his argument: 1) prior to trial, prosecutors interfered with the trial court’s order allowing defendant to escort his daughter, during her, homecoming court presentation; 2) prosecutors asked the trial court to unseal records in order to attach them to a bar complaint that prosecutors wanted to file against defense counsel (the trial court denied this request); 3) the prosecutor asked E.H.’s mother on direct examination if it was difficult listening to her daughter being called a liar by defense counsel, during opening statements; and 4) the prosecutor made various statements during closing arguments that defense counsel was trying to deceive the jury.

Defendant did not lodge any contemporaneous objections to alert the trial court that he objected to the listed conduct as improper or as constituting ₃₅prosecutorial conduct. As such, defendant failed to preserve these issues for appellate review. See La. C.Cr.P. art. 841.²⁰ Further, based on our review of the record, we do not find that any of the conduct referenced by defendant constitutes an improper personal attack on defense counsel or prosecutorial misconduct.

20 La. C.Cr.P. aft. 841(A) states:
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the’ court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
Paragraph (C) of La. C.Cr.P. art. 841 provides, "The necessity for and specificity of evidentiary objections are governed by the Louisiana Code of Evidence." La. C.E. art. 103 states, in pertinent part, that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and … (1) [w]hen the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection[.]"

Improper Victim Impact Evidence

In his next assignment of error, defendant complains that the victim’s parents called as witnesses by the State improperly offered victim impact testimony, which is only permissible during the sentencing phase of the trial.

[39, 40] Victim impact evidence or testimony offered at the sentencing phase is generally about the harm a defendant’s crime caused to the victim and her family and caregivers. State v. Williams, 96-1023 (La. 1/21/98), 708 So.2d 703, 720-22, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998). Again, defendant did not lodge any contemporaneous objections indicating that he objected to the parents’ testimony during the trial on the grounds of improper victim impact testimony. Defendant does not even cite to any specific testimony that is objectionable on appeal. Accordingly, defendant failed to preserve this issue for appellate review. See La. C.Cr.P. art. 841.

[41] Further, even if defendant raised a contemporaneous objection, the victim’s parents testified regarding proper and relevant factual circumstances surrounding the charges involving their daughters and their CAC interviews; how and when the parents learned about their daughters’ allegations against defendant and their ₃₆immediate reactions; their daughters’ behavior around the time of the charged offenses occurred; and their interactions and relationship with defendant. Such evidence is not victim impact testimony limited to sentencing issues. See State v. Hoffman, 98-3118 (La. 4/11/00), 768 So.2d 542, 567, cert. denied, 531, U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State v. Lambert, 98-730 (La. App. 4 Cir. 11/17/99), 749 So.2d 739, 755, writ denied, 00-1346 (La. 1/26/01), 781 So.2d 1258. Accordingly, this assignment of error is without merit.

Failure to Grant Motion to Continue Sentencing and Jury Misconduct

Defendant also argues that this Court should grant him a new trial because of jury misconduct and bias. In a related assignment of error, defendant argues that he was prejudiced by the trial court’s failure to grant his motion to continue his sentencing date because he was unable to complete his investigations relating to alleged jury misconduct prior to the ruling on his first motion for new trial. Defendant contends that after the trial court denied his first motion for new trial, he discovered that two jurors, Arberdella Jackson and Alyssa Scallan, failed to disclose information that would have supported a valid cause challenge, and therefore argues that his convictions must be reversed. As discussed more fully below, defendant argues that Ms. Jackson expressed opinions regarding defendant’s guilt before the trial started, disregarded instructions to avoid media reports and social media, and was the subject of two anonymous notes. He also argues that Ms. Scallan failed to answer honestly regarding her alleged relationship with A.G.’s deceased mother during voir dire based on a Facebook post defendant discovered shortly after the trial ended.

The State responds that the trial court provided extensive reasons in support of its decision to deny the request for continuance and did not abuse its discretion. The State further responds that with respect to defendant’s claims of jury misconduct, in ₃₇ State v. Perilloux, 22-332 (La. App. 5 Cir. 8/24/22), 2022 WL 3714605, writ denied, 22-1452 (La. 11/22/22), 350 So.3d 502, this Court previously held that defendant’s claim of jury misconduct in his second motion for new trial, filed more than a year after sentencing, was not new evidence that could be admitted at trial pursuant to La. C.Cr.P. art. 851(B)(3), and therefore, defendant had not demonstrated any new evidence that could produce a verdict different from that rendered at trial. It contends that because defendant failed to timely raise this issue in the trial court, this Court must deny these assignments of error.

Finally, the State argues that the allegations regarding alleged juror misconduct in defendant’s second motion for new trial are without merit. The State contends that defendant relies on inadmissible and contradicted hearsay statements of an alternate juror, wild and speculative claims in notes about jurors conveniently found and turned over by defendant, and an innocuous social media post from more than five years prior to trial. As to the claim regarding jury foreperson, Arberdella Jackson, the State asserts that defendant had thirty-three days between the verdicts and his motion to continue sentencing to investigate this claim but did not do so. It also asserts that defendant waited several months after Ms. Jackson passed away to send an investigator to interview the jurors, and that Ms. Scallan testified that she never heard Ms. Jackson make the statements alleged by defense counsel.

As to the claim regarding Ms. Scallan, the State argues that the Facebook post occurred five years prior to trial and that Ms. Scallan testified that she was simply acknowledging public sentiment of appreciation for the then recently deceased moth- er of A.G. The State further argues that during voir dire, Ms. Scallan readily disclosed her knowledge of witnesses for both the State and defendant pointing out that defense counsel never asked Ms. Scallan further follow-up questions regarding possible connections to the instant case. In sum, the State maintains that defendant has failed to provide competent evidence that would ₃₈lead to the conclusion that he was prejudiced by having Ms. Jackson or Ms. Scallan on the jury.

Defendant’s Motion to Continue Sentencing/First Motion for New Trial

Defendant’s claims of jury misconduct raised in his motion to continue his sentencing date involved the two anonymous notes defendant received on the third day of trial. On September 11, 2020, defendant claimed that an unidentified man handed him a typewritten note in the parking lot containing cryptic references to corruption, politics, and an alleged "manipulator" placed on the jury by people involved in local politics. The note also suggested that defendant question his ex-wife, inquire into his own attorneys, and research the prosecution attorneys’ political connections. The note was brought to the attention of the trial court. The following day, the court stated on the record in the presence of all counsel that "[n]o one felt the need to place anything on the record. And we simply proceeded to trial." Defendant did not object to this statement by the trial court.

Defendant then found a second handwritten note in the door of his car when he was leaving court at the end of the third day of trial. Though it did not include any names, the note appeared to indicate by means of a diagram that the "manipulator" was the juror sitting in the first seat at the top of the jury box, Ms. Arberdella Jackson, and included the phrase "jury tampering from within." The following morning, the trial court held an in chambers conference with the State, defendant, and his counsel, which was transcribed by the court reporter. The trial court and parties reviewed the contents of the second note with counsel, and indicated that the note would be placed under seal in the record. The trial court further observed that the note was illogical and nonsensical, and concluded there was no evidence to indicate that the note "in any way impacts the fairness of the proceedings in any way, toward the defense or the State or the Court or the jury process, in particular." Defendant contends that his counsel asked the trial court to ₃₉question the jurors regarding the notes, but the trial court denied the request. The transcript from the in chambers conference does not contain any such request from defense counsel, and there is no objection from defendant contained in the record regarding this request.²¹

21 The transcript only contains a request from defense counsel to "voir dire the jury on whether or not they saw anything on the news," and the trial court agreed to grant this request. At the hearing held by Judge Franz Zibilich regarding the timeliness of defendant’s second motion for new trial discussed more fully below, defense counsel, James Williams, recalled that he asked to question Ms. Jackson prior to the in chambers conference and Judge Waldron denied his request. Judge Waldron also testified that he had a similar recollection.

Following defendant’s convictions later that day on September 12, 2020, the trial court set a sentencing date over a month later on October 15, 2020. On October 8, 2020, defendant filed a motion to continue his sentencing date to allow his new appellate counsel time to obtain and review voir dire transcripts and to investigate possible jury misconduct.²² Defendant in- dicated in his written motion and at oral argument that his concerns regarding jury misconduct were based on the jury notes discussed above and Ms. Jackson’s subsequent selection to serve as the jury foreperson during deliberations. Though defendant had already received information about Ms. Scallan’s Facebook post at this time, he did not bring his concerns about this post to the attention of the trial court during the October 15, 2020 hearing on his motion to continue the sentencing date and also failed to raise this concern as part of his first motion for new trial filed immediately after the trial court denied his request to continue sentencing.²³ In addition, as discussed below, defendant did not commence efforts to contact any of the jurors/alternative jurors regarding alleged misconduct until February 2021.

22 Defendant hired new appellate counsel because his trial attorneys believed they would be witnesses to in chambers discussions regarding the anonymous notes.

23 Defendant contends that his counsel did not raise any issues about the Facebook post at that time because they did not have the transcripts and were not sure if Ms. Scallan mentioned knowing A.G.’s mother during voir dire.

La. G.Cr.P. art. 853(A) provides:

Except as otherwise provided by this Article, a motion for a new trial must be filed and disposed of before sentence. The court, on motion of the defendant and for good cause shown, may postpone the ₄₀imposition of sentence for a specified period in order to give the defendant additional time to prepare and file a motion for a new trial.

[42, 43] The decision of 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 clear abuse of discretion. State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, 755, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Shannon, 10-580 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, 715, writ denied, 11-559 (La. 9/30/11), 71 So.3d 283. In addition, courts generally decline to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Id.

Following oral argument, the trial court denied defendant’s motion to continue the sentencing date. The trial court concluded that defendant’s request for additional time to obtain transcripts did not constitute good cause to delay sentencing. The trial judge stated that he observed no problems during voir dire; that the transcript would not show that anything was improper, deficient, or unfair to anyone; that neither side exhausted their peremptory challenges; and that the jurors reported no problems or concerns to him. The trial court also reviewed the two anonymous notes and described them as baseless, rambling, and irrelevant. He observed that the juror referred to as the "manipulator" was randomly selected by a computer-generated process, and no one had heard anything further regarding the notes or the author, or authors, of the notes since the trial. The trial court further explained that he decided not to question or inform the jurors about the notes because he believed it might do more harm to defendant rather than the State, as the jurors may have thought as a former judge, defendant or his attorneys were involved.

After the trial court denied the motion to continue, defendant filed a motion for new trial that did not include any allegations regarding the anonymous notes or ₄₁alleged jury misconduct as grounds for new trial. The trial court denied the mo- tion for new trial and set a new sentencing date for October 19, 2020.

[44] Considering the foregoing, we do not find that the trial court abused its broad discretion by denying defendant’s request to further delay the sentencing date. The trial court allowed defendant over a month to prepare his post-trial motions. Defendant contends that by denying the continuance, the trial court delayed his investigation into jury misconduct. However, the record indicates that defendant did not make any efforts to contact the jurors, including the foreperson, Ms. Jackson - the alleged subject of the anonymous notes - regarding alleged misconduct during the month prior to his sentencing. Further, he did not provide the trial court with any new grounds to warrant a finding that defendant needed additional time to investigate alleged jury misconduct. The only issue that defendant raised regarding alleged jury misconduct was the anonymous notes that the, trial court previously dismissed as rambling and incoherent and defendant did not provide any new information to the trial court

Second Motion for New Trial

Defendant filed a Second motion for new trial almost a year later on October 6, 2021, arguing that newly discovered evidence demonstrated that his right to a panel of impartial, unbiased jurors was violated based on new revelations of juror misconduct. He first argued that with respect to juror Alyssa Scallan, she failed to disclose a close, personal relationship with the victim A.G.’s mother, who died of cancer over five years prior to the trial. Defendant based this allegation on a Facebook post in September 2015, in which Ms. Scallan was responding to another friend’s post regarding A.G.’s deceased mother and stated: "What an incredible story!! Happy belated birthday to such an amazing woman, … We love and miss you!!" Defendant argued that this evidence revealed that Ms. Scallan concealed ₄₂her close, personal relationship with A.G.’s mother and that bias must be presumed.

He also argued that his investigator learned from an alternate juror, Arlisha Pidgeon, that prior to opening statements, Ms. Jackson stated, loud enough for other jurors to hear, that defendant was guilty. Defendant also alleged that Ms. Pidgeon said that Ms. Jackson admitted on the second or third day during the trial that she read about the case in the newspaper and saw it on Facebook. Defendant argued that Ms. Jackson concealed her opinion as to defendant’s guilt during voir dire and that had she answered truthfully, her response would have provided a valid basis for a challenge for cause. Defendant argued that these issues were prejudicial and that despite his exercise of due diligence, he did not discover this information prior to the guilty verdicts. Defendant maintained that these prejudicial errors mandated a new trial under La. C.Cr.P. arts. 851(B)(4) and (5).²⁴ As explained above, because this matter was on appeal, on December 10, 2021, this Court remanded the matter to the trial court to consider whether the second motion for new trial was timely, and if so, to consider the merits of the second motion for new trial. Judge Zibilich decided that he needed to hear substantive testimony in order to determine whether the second motion for new ₄₃trial was timely. Therefore, on March 24 and 25, 2022, the trial court heard testimony from six witnesses: Judge Dennis Waldron, Ms. Scallan, alternative juror Arlisha Deon Guill (formerly Pidgeon), defense investigator Ryan Jawetz, and defense counsel Jim Williams and Kim McElwee. On June 28, 2022, Judge Zibilich ruled that the new evidence of alleged juror misconduct constituted newly discovered evidence pursuant to La. C.Cr.P. art. 851(B)(3), and therefore, ruled that the second motion for new trial was timely.

24 La. C.Cr.P. art. 851(B) provides in pertinent part as follows:
The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment.
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter or strict legal right.
As noted above, La. C.Cr.P. art, 853(A) requires motions for new trial to be filed and disposed of before sentencing. Section B provides an exception when a motion for new trial is based on Article 851(B)(3), newly discovered evidence, "the motion may be filed within one year after verdict or judgment of the trial court, although sentence has been imposed or a motion for new trial has been previously filed." Accordingly, defendant’s second motion for new trial was untimely with respect to his claims that he is entitled to a new trial pursuant La. C.Cr.P. art. 851(B)(4) and (5), as these grounds must be raised prior to sentencing.

The State filed a writ application seeking supervisory review of Judge Zibilich’s ruling, and on August 24, 2022, this Court granted the writ and found that defendant’s second motion for new trial was untimely, stating in pertinent part:

Defendant alleged in his second Motion for New Trial that it was based on La. C.Cr.P. art. 851(B)(4) and (5). However, defendant also alleged in his motion that it was based on newly discovered evidence, even though he did not specifically cite La. C.Cr.P. art. 851(B)(3). We find that defendant’s allegation of jury misconduct is not new evidence that could be admitted at trial under Article 851(B)(3), and that defendant has not demonstrated the existence of any new evidence which could produce a verdict different from that rendered at trial. See State v. Bibb, 626 So.2d 913, 927 (La. App. 5 Cir. 1993), writ denied, 93-3127 (La. 9/16/94), 642 So.2d 188. Since defendant’s allegation of jury misconduct does not fall under Article 851(B)(3), his motion for new trial is untimely because it was not filed and disposed of before sentence. See La. C.Cr.P. art. 853(A).

State v. Perilloux, 22-K-332.

[45] As previously explained, under the doctrine of "law of the case," an appellate court will generally decline to consider its own rulings of law on a subsequent appeal in the same case. Allen, supra. Defendant does not contest this ruling on appeal. And reconsideration of our prior ruling that the second motion for new trial was untimely is not patently erroneous, nor does it produce unjust results. Falcon, supra. Evidence of alleged jury misconduct does not fall under Article 851(B)(3). Therefore, defendant’s second motion for new trial was untimely because it was not filed and disposed of before sentence.

[46] ₄₄Furthermore, even if we found that defendant’s second motion for new trial was timely, we agree with the State that defendant failed to provide evidence of jury misconduct warranting a new trial. Ms. Jackson stated during voir dire that she had not heard any publicity about the case and had not formed any opinions regarding the charges against defendant. Defendant relies on testimony provided by an alternate juror to claim that Ms. Jackson made statements to the contrary prior to and during trial that were loud enough for the jurors to hear. But Ms. Scallan, a juror who actually participated in deliberations, testified that she did not hear Ms. Jackson make any statements regarding defendant’s guilt prior to or during the trial. In addition, she agreed that she did not hear any information outside of what was presented in the courtroom during her jury service, which would include jury deliberations. Furthermore, no juror, including Ms. Pidgeon, came forward with any of these allegations during the trial. Considering the forgoing, and considering the substantial evidence presented by the State to support defendant’s convictions, the allegations of alleged misconduct regarding Ms. Jackson do not constitute legitimate claims of juror misconduct warranting a new trial.

[47] With respect to Ms. Scallan, she disclosed during voir dire that, while she did not have a personal relationship with any of the witnesses, she knew some of them in the sense that they "know who I am, I know who they are." She further explained that she knew witnesses for both the State and defense including A.G.’s father, E.H., defendant’s ex-wife, and defendant’s daughters. Ms. Scallan agreed that there was not anything that she knew about the witnesses that would cause her to be unfair or impartial. During his questioning, defense counsel asked Ms. Scallan if she could judge the credibility of the witnesses she knew and hear the case with "a clean slate." Ms. Scallan answered affirmatively and defense counsel ₄₅did not ask any additional questions regarding her specific knowledge of these witnesses.

During her testimony at the second motion for new trial, Ms. Scallan explained that she did not specifically mention her knowledge of A.G.’s deceased mother because she was not mentioned on the witness list. With respect to the Facebook post made five years prior to the trial, Ms. Scallan explained that she did not have a personal relationship with A.G.’s deceased mother, but knew who she was because she was very involved in the local school and church, similar to defendant’s family. She further explained that she intended the Facebook post to be an expression of community or public sentiment, rather than her personal feelings, following the death of A.G.’s mother. We further point out that defendant knew about the Facebook post at the time he moved to continue his sentencing date, but did not raise it with the trial court when he filed his first motion for new trial. Clearly, this issue cannot now serve as grounds to grant a new trial.

Accordingly, these assignments of error regarding alleged jury misconduct and the denial of defendant’s motion to continue sentencing are without merit.

Excessive Sentence

Defendant argues in this assignment of error that his four consecutive sentences totaling 14 years are cruel, unusual, excessive, and grossly disproportionate in violation of Article I, § 20, of the Louisiana Constitution and the Eighth Amendment of the United States Constitution.

On October 15, 2020, the trial court heard victim impact statements. R.H., E.H.’s mother, testified that defendant’s selfish, perverted desires single-handedly destroyed the lifelong friendships between his daughters and their friends. She stated that the victims would never be able to completely forget what had happened to them and asked the trial court to impose the maximum sentences so her family would not have to see defendant, who lived nearby. The trial court also privately ₄₆read written statements from E.H. and her father. A.G. then testified that she forgave defendant for touching her inappropriately but was still angry with him "for what [he] did to my best friend, [his] daughter." L.G., A.G.’s father, testified that the pain, suffering, and damage that these crimes had inflicted upon his household could not be adequately described.

Prior to sentencing on October 19, 2020, the trial court provided extensive reasons to explain the sentences it intended to impose. The court expressed its concern that defendant was frequently alone with teenaged girls, sent inappropriate text messages that expressed his love for the victims, and detailed defendant’s gifts to the victims, including cash. The trial court explained that the evidence revealed that defendant began to take certain liberties with the young victims, namely, slapping their rear-ends, applying sunscreen, and giving massages, sometimes clad only in boxer shorts. These actions and behaviors were evidence of the most unusual relationship defendant sought to cultivate with the victims over an extended period of time that included his campaign for judge and his service on the bench. The trial court believed that defendant’s methodical process was a classic, textbook example of grooming, and around the time of the Florida trip in July 2017, defendant’s behavior rapidly escalated from being socially inappropriate to criminal in nature. The court further observed that the victims explained that they were scared and confused about reporting defendant’s conduct because he was a father figure and they feared losing their friendships with his daughters.

With respect to defendant’s trial testimony and behavior, during and after trial, the trial court stated in pertinent part:

This Court has carefully observed this defendant during the trial and the post-conviction hearing with and without his mask on, including his mannerisms, his body language, and in particular, his trial testimony and his demeanor on the stand.

At all times, there was an air and a feel of invincibility that he displayed and projected, in my mind. He displayed no emotion, no ₄₇remorse, and no genuine concern for the victims. In many ways, he seems detached from the reality and significance of the many wrongs he has committed, and perhaps never capable of accepting responsibility and punishment for those acts…. but suffice it to say this Court concludes the defendant remains untruthful, defiant, and totally unremorseful for his misdeeds and his overall conduct.

All of these factors create grave concern, … as to the defendant’s continuing threat to the community, especially young girls, as the evidence, in my mind, clearly demonstrates the defendant’s continuing lustful disposition toward them.

The trial court then imposed a four-and-a-half-year sentence on each of the three counts of indecent behavior with a juvenile to run consecutively, for a total of thirteen-and-a-half years. Defendant did not object. Defendant thereafter filed a timely motion to reconsider sentence based on the "excessive and harsh nature of the sentences imposed," but did not specifically object to the consecutive nature of the sentences. The trial court denied the motion the motion to reconsider on January 29, 2021, without any additional argument from defendant.

[48, 49] La. C.Cr.P. art. 881.1(E) provides that failure to include a specific ground upon which a motion to reconsider sentence may be based shall preclude the defendant from urging any ground not raised in the motion on appeal or review. On appeal, defendant challenges the exces- siveness of his consecutive sentences. However, defendant did not object to the imposition of consecutive sentences at sentencing, in his written motion to reconsider sentencing, or at the hearing on his motion to reconsider. Because defendant failed to argue that the imposition of consecutive sentences was excessive in the trial court, the issue was not preserved' for review on appeal and our review is limited to constitutional excessiveness. See State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325 So.3d 513, 569, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071.

[50–52] The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. ₄₈ State v. Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied, 20-266 (La. 7/24/20), 299 So.3d 69. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Woods, 18-413 (La. App. 5 Cir. 12/19/18), 262 So.3d 455, 460. According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Calloway, supra.

[53–55] The relevant question on appeal is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289 So.3d 170, 174, writ denied, 20-143 (La. 7/17/20), 298 So.3d 176. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that any factor be given any particular weight at sentencing. Woods, 262 So.3d at 460-61.

[56] Further, maximum or nearly maximum terms of imprisonment may not be excessive when the defendant exploits a position of trust to commit sexual battery or indecent behavior with a juvenile. State v. Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied, 01-2965 (La. 10/14/02), 827 So.2d 414. La. R.S. 14:81(H)(1) provides, "Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both …." Defendant ₄₉received a four-and-a-half-year hard labor sentence on each of his three felony convictions.

[57] The sentences imposed by the trial court were not excessive. Defendant exploited his position of trust in order to gain access to, and touch, the victims inappropriately. The evidence showed that defendant engaged in a pattern of grooming that started with the exchange of text messages, the giving of gifts and compliments, and back massages that progressed to touching the victim’s breasts. The trial court provided extensive reasons for the sentences imposed and expressed grave concern as to defendant’s continued threat to the community. We agree with the trial court that defendant’s attempt to portray his Conduct with young teenage girls as innocent acts of kindness and love is disturbing. We further observe that the misdemeanor charge of sexual battery involv- ing the touching of S.B.’s breasts occurred even after A.G. reported defendant’s inappropriate touching and interactions with her in Florida in July 2017 to her parents and authorities. Accordingly, the trial court did not abuse its discretion when it sentenced defendant to four-and-a-half years at hard labor on each of the three counts of indecent behavior with a juvenile.

Denial of Right To Fair Trial Due To Unfair and Impartial Trial Judge

In his next assignment of error, defendant argues that the trial court’s inability to be fair and impartial throughout the proceedings affected his right to a fair trial. Defendant lists many of the trial court’s rulings and statements that He contests in the assignments of error discussed above as examples of alleged impartial and unfair conduct, including 1) the ruling finding La. C.E. art. 404(B) evidence admissible; 2) the rulings excluding evidence that defendant’s claims affected his right to present a defense; 3) the extensive reasons for sentencing provided by the trial court and the consecutive nature of the sentencing; and 4) the trial court’s alleged unsolicited opinion testimony regarding the anonymous notes ₅₀when Judge Waldron testified at the hearing on the timeliness of defendant’s second motion for new trial. Considering this Court concluded that these assignments of error were meritless, we do not agree that any of these rulings, statements or actions by the trial court demonstrate impartiality by the trial court or served to deprive defendant of his right to a fair trial.

[58] Defendant also complains that, rather than simply ruling on his objections, the trial court expressed opinions and offered comments regarding witness testimony. Defendant does not discuss specific issues, but rather lists numerous record cites as examples. We reviewed each page cited by defendant in his brief, as well as additional instances where the trial court ruled on objections raised by the State, and find that the trial court uniformly provided thorough and appropriate explanations for his rulings on objections raised by both parties throughout the proceedings. Further, on several occasions, the trial court explained that when ruling on objections, the court was simply explaining the applicable law and that factual issues would be for the jury to decide. We do not find that this practice prejudiced defendant or deprived him of a fair trial. We further observe that defendant did not raise any objections about this issue during the trial.

Defendant next argues that the trial court demonstrated bias against him by interrupting his counsel when questioning witnesses even though the State had not objected. Again, defendant does not discuss specific instances, but lists five record cites for the following examples: 1) defense counsel was arguing with the victim, A.G., and the court redirected counsel to ask a question; 2) the trial court instructed defense counsel to allow the witness to finish her answer before proceeding to the next question; 3) the trial court interrupted counsel and told her to move on after she asked another question similar to the one for which the court had just sustained an objection; and 4) in the final two examples, the trial court was continuing to discuss its ruling on an objection when in one instance, counsel began posing ₅₁questions again before the trial court completed its ruling, and in the other instance, after the witness had finished answering, the trial court explained to the jurors that the court was not making any conclusions regarding the facts of the case in ruling on the objection and advised that it was entirely up to the jury to determine who was telling the truth in the matter. We find no bias on the part of the trial court in these examples.

[59] Finally, defendant complains that the trial court demonstrated bias against him by remanding him to jail prior to sentencing despite, knowing that defendant was the sole caretaker for his father. The trial court, however, allowed defendant to remain free on his existing bond for over a month after the jury convicted him on all counts. The trial court did not remand defendant until after it denied his motion to continue sentencing and motion for new trial on October 15, 2020. Defendant was sentenced four days later on October 19, 2020. We do not find that remanding defendant for the four days prior to his sentencing demonstrates bias. This assignment of error is without merit.

Denial of Right to a Jury Composed of a Fair Cross Section of the Community and To Confront Witnesses Against Him Due To Covid Restrictions

[60–62] In this assignment of error, defendant argues that he was denied his Sixth Amendment right to a jury composed of a fair cross section of the community and to confront witnesses against him due to COVID precautions implemented throughout his trial. Defendant specifically complains that his trial was the first jury trial conducted in the 40^th Judicial District Court after the start of the pandemie. He argues that as a result, jurors otherwise qualified to serve were excused because of concerns about COVID-19; the courtroom was kept so cold that it impacted his trial counsel’s performance; and that plexiglass partitions made it difficult to hear witness testimony. Defendant made no contemporaneous objection regarding the potential jury pool or the COVID precautions implemented ₅₂throughout his trial. As such, defendant is precluded from raising these claims on appeal. See La. C.Cr.P. art. 841.

[63] We further observe that the first time defendant raised any issue regarding the jury pool is on appeal. Further, the first time he raised objections regarding the temperature or the ability to hear witnesses was well after trial in his motion to continue the sentencing date. In its reasons provided for denying defendant’s motion to continue, the trial court explained that prior to trial, the parties agreed to the COVID precautions implemented in the courtroom. The trial court further observed that defense counsel did not place any objections on the record regarding the courtroom temperature, and the jurors did not raise any complaints. With respect to the ability to hear the witnesses due to the plexiglass, the trial court explained that two pieces of plexiglass surrounded two sides of the witness stand, and there was no plexiglass in front of the jurors. In addition, witnesses removed their masks when testifying in order to allow everyone in the courtroom to hear their testimony and observe their demeanor. The trial court pointed out that the jurors did not raise any issues regarding their ability to hear testimony. Finally, our review of the record indicates that on the few occasions that defense counsel indicated they could not hear a witness, the trial court immediately addressed the issue and/or the witness repeated the testimony.

Right to a Completo Appellate Record

[64] Defendant next argues that he was denied the right to a complete appellate record because the trial court conducted in-chambers conferences that were not transcribed. However, our review indicates that the trial court provided summaries of in-chambers conferences either in writing or on the record following conferences and defendant did not object to the accuracy of these summaries. More importantly, defendant does not discuss any specific instanc- es where he suffered prejudice due to an unrecorded in-chamber conference.

[65–68] ₅₃Article I, § 19 of the Louisiana Constitution guarantees a right of appeal based upon "a complete record of all the evidence upon which the judgment is based." Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. State v. Frank, 99-553 (La. 1/17/01), 803 So.2d 1, 20. However, inconsequential omissions or slight inaccuracies do not require reversal. Id. at 21. A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts. Id. Also, there exists a presumption of regularity in judicial proceedings. See La. R.S. 15;432; State v. Hawkins, 96-766 (La. 1/14/97), 688 So.2d 473, 480.

La. C.Cr.P. art. 843 provides in pertinent part that:

In felony cases, …the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

In State v. Hoffman, 768 So.2d at 586-87, the Louisiana Supreme Court recognized that La. C.Cr.P. art. 843 generally does not require the recordation of bench conferences:

This court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La. Code Crim. Proc. Art. 843. Still, art. 843’s description of "objections" and "arguments" will normally apply only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke art. 843. Similarly, Art. I § 19’s command to record ‘evidence’ does not encompass bench conferences, at least not ones that do not satisfy the materiality requirements of La. Code Crim. Proc. art. 843. (citations omitted).

Defendant does not point to any unrecorded conferences that prevented him from presenting or defending his case in these proceedings. Further, nothing in the record suggests that defendant objected to in chambers conferences. Because defendant fails to point to any material omission from the transcript or record of ₅₄the proceedings resulting in prejudice to him, we find that this assignment of error is without merit.

Cumulative Impact

In his final assignment of error, defendant argues that the cumulative impact of the errors raised on appeal violated his due process rights, thereby warranting the reversal of his convictions and a new trial. Following extensive examination of the record and defendant’s assignments of error, we find no reversible error. The Louisiana Supreme Court has held that the combined effect of assignments of error, none of which amounts to reversible error, does not deprive a defendant of his right to a fair trial. State v. Holliday, 17-1921 (La. 1/29/20), 340 So.3d 648, 714, cert. denied, — U.S. —, 141 S.Ct. 1271, 209 L.Ed.2d 10 (2021). Considering the evidence as a whole, particularly the jury’s apparent rejection of defendant’s testimony, the verdicts rendered in this case were not attributable to the assignments of error raised by defendant.

ERRORS PATENT

Following a review pursuant to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), we find no errors patent.

DECREE

For reasons stated, above, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED