author: PETERS, J. GREMILLION, Judge,

text:
    Patrick JOHNSON v. CONAGRA POULTRY COMPANY.
    No. 11-0986.
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2012.
    Maurice Blake Monrose, Hurlburt, Mon-rose, Dartez & Ernest, Lafayette, LA, for Defendant/Appellee, Conagra Poultry Company.
    George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appellant, Patrick D. Johnson.
    Court composed of JOHN D. SAUNDERS, OSWALD D. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

|! This is the second appeal on a similar issue in this workers’ compensation matter. The plaintiff, Patrick D. Johnson, appeals from the judgment of the workers’ compensation judge (WCJ), awarding him a single penalty based upon numerous violations of the defendant, Conagra Poultry Company (Conagra), of La.R.S. 23:1201(E). Although our prior decision limited Mr. Johnson to one penalty, we decline to follow that holding and increase his award of penalties and attorney fees.

DISCUSSION OF THE RECORD

The facts in this matter are not disputed. Mr. Johnson injured his back while employed as a driver for Conagra. In 2008, he filed a disputed claim against Conagra, based upon, among other issues, its failure or refusal to pay for medications prescribed by his treating physician. In that instance, as here, Mr. Johnson alleged that he was entitled to a penalty for each time Conagra ignored requests for payment of the medication up to the maximum of $8,000.00. Following a hearing on the merits, the WCJ awarded Mr. Johnson $2,000.00 in penalties. Mr. Johnson appealed and a divided panel held that Conagra’s failure to timely pay for the prescription medication was “a single, ongoing violation.” Johnson v. Conagra Poultry Co., 09-646 (La.App. 3 Cir. 12/9/09), 26 So.3d 982, writ denied, 10-350 (La.4/16/10), 31 So.3d 1067.

In total, prescriptions were purchased by Mr. Johnson at Causey’s Pharmacy (Causey’s) on thirteen occasions between July 31, 2009 and January 20, 2010. Cau-sey’s, who bills weekly, mailed statements for each purchase to Mr. Johnson’s attorney and faxed copies to Sedgwick CMS (Sedgwick), Conagra’s third-party |2adjustor. Counsel for Mr. Johnson also forwarded several billing statements to Sedgwick, requesting immediate payment of amounts due.

On June 28, 2010, Mr. Johnson filed a second disputed claim with the Office of Workers’ Compensation, based on Cona-gra’s failure to timely pay or authorize payment of medications prescribed by his treating physician. He further sought penalties, attorney fees, and legal interest. On June 29, 2010, Causey’s faxed a statement containing all overdue payments to Sedgwick. Conagra answered by denying Mr. Johnson’s claim.

This matter was submitted to the WCJ on the record. It was noted at the hearing that Conagra had previously paid Mr. Johnson $2,000.00 in penalties for violating La.R.S. 23:1201(E). Mr. Johnson stipulated that Causey’s received the outstanding balance of $2,612.92 on January 24, 2011. After taking the matter under advisement, the WCJ issued an oral ruling, finding that Mr. Johnson’s claim is based on a single, ongoing violation of La.R.S. 23:1201(E), just as in the prior claim. The WCJ awarded Mr. Johnson $2,000.00 in penalties, $2,000.00 in attorney fees, and costs. Mr. Johnson filed a motion for a partial new trial, seeking an increase in attorney fees, which was denied. A judgment was rendered in this matter on May-11, 2011. Mr. Johnson appeals from this judgment.

On appeal, although Mr. Johnson failed to specify any assignments of error, as required by Rule 2-12.4, Uniform Rules— Courts of Appeal, he sets out two issues in his appellate brief:

1. Did the WCJ err, as a matter of law, in awarding only one $2,000.00 penalty, despite undisputed proof of multiple different and |sseparate claims for payment of medication expenses, the total of which, $2,612.92, remained unpaid at time of trial? Stated otherwise, which decision, Johnson I or Burnett v. Village of Estherwood, 2009-680 (La.App. 3 Cir. 12/9/09); 25 So.3d 997[,] accords more fully with the precepts enunciated in Fontenot v. Reddell, 2002-0439 (La. 1/14/03); 836 So.2d 14, 25.
2. Should the attorney fee award be increased?

OPINION

Multiple Penalties

Louisiana Revised Statutes 231201(E) provides, “Medical payments payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” In the case of a violation of La.R.S. 231201(E), La. R.S. 231201(F) provides:

Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, of fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid ... together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or such nonpayment results from conditions over which the employer or insurer had no control.

Mr. Johnson argues that rather than follow the holding set out by this court in Johnson, 26 So.3d 982, we should follow the holding reached by this court in Burnett v. Village of Estherwood, 09-680 (La. App. 3 Cir. 12/9/09), 25 So.3d 997. Meanwhile, Conagra argues that the holding in Johnson, 26 So.3d 982, is the law of, not only the third circuit, but also of this case.

|4The law-of-the-case doctrine was set out by this court in Hesse v. Champ Service Line, 99-1259, pp. 3-4 (La.App. 3 Cir. 2/2/00), 758 So.2d 245, 248:

The law-of-the-case doctrine concerns (a) the binding force of trial court rulings during later stages of a trial; (b) the conclusive effects of appellate rulings at the trial on remand; and (c) the rule that, ordinarily, an appellate court will not reconsider its own rulings of law on a subsequent appeal in the same case. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95); 649 So.2d 1158. The doctrine is applied merely as a discretionary guide. Id. Reasons for application of the doctrine include the avoidance of indefinite relitigation of the same issue, the desirability of consistency of the result in the same litigation, and the efficiency and essential fairness to the litigants of affording a single opportunity for argument and decision of the matter at issue. Id.

As stated above, the application of the law-of-the-case doctrine is discretionary. However, this doctrine should not be applied in instances where its application will “effectuate an obvious injustice or where the former appellate decision was clearly erroneous.” Trans La. Gas Co. v. La. Ins. Guar. Ass’n, 96-1477, p. 6 (La.App. 3 Cir. 5/9/97), 693 So.2d 893, 896.

We find that applying our prior holding in this matter will result in an obvious injustice as Conagra will, once again, escape the consequences of its numerous violations of La.R.S. 23:1201(E). In Fontenot v. Reddell Vidrine Water District, 02-439, 02-442, 02-478, pp. 14-15 (La.1/14/03), 836 So.2d 14, 25 (second alteration in original), the supreme court stated:

[W]e find it consistent with the legislative intent to interpret “claim” as a demand for particular benefits as found by the appellate court. Such an interpretation is consistent with the other provisions of LA.REV.STAT. ANN. § 23:1201 and in accord with the purpose for the Legislature’s inclusion of penalties and attorneys’ fees in the scheme of workers’ compensation law. In those instances where a claim is either not reasonably controverted or if nonpayment results from conditions under the control of the employer or insurer, this proviso for multiple penalties will address the recalcitrant employer or insurer and will encourage employers and their workers’ compensation insurers to honor their continuing obligation to the injured worker. “[T]o conclude otherwise would dilute the deterrent effect of these statutory provisions, which are not intended to make the worker “whole’ but rather to discourage specific conduct on the part of the employer.” Haynes, 805 So.2d at 231(quoting Gay v. Georgia Pacific Corp., 32,653 (La.App. 2 Cir. 12/12/99), 754 5So.2d 1101); see also Sharbono [v. Steve Lang & Son Loggers, 97-110 (La.7/1/97) ], 696 So.2d [1382,] 1386. Simply stated, without such an understanding of the statute, there would be nothing to leverage the obstinate employer or its insurer to comply with their statutory obligation to the injured worker.

In Haynes v. Williams Fence and Aluminum, 01-26, p. 24 (La.App. 3 Cir. 7/25/01), 805 So.2d 215, 229-30 (alteration in original), which the supreme court quoted with approval in Fontenot, 836 So.2d 14, this court stated:

In Fontenot v. Reddell Vidrine Water District, 00-762 (La.App. 3 Cir. 2/21/01); 780 So.2d 1197, writ granted, 01-752 (La.5/11/01); 792 So.2d 1, this court held that, while an employee may receive separate penalties for both indemnity and medical benefits claims, the employee in the case at bar was entitled to receive only one penalty for the insurer’s failure in two respects, ie., its miscalculation of indemnity benefits and its improper reduction of benefits. The author of the instant opinion dissented in Fontenot, stating in part:
Under La.R.S. 23:1201(F), it is the “[f]ailure to provide payment in accordance with this Section [La.R.S. 23:1201]” that “shall result in the assessment of a penalty.” Pursuant to La.R.S. 23:1201(B), (C), and (D), “all such compensation then due” must be paid and it must be paid within the time specified. Additionally, pursuant to La.R.S. 23:1201(E), “[m]edical benefits payable” must be paid within the specified time. Thus, Subsections (B), (C), (D), and (E) essentially place two requirements on the employer/insurer — payment of the correct amount of benefits and timely payment of those benefits.
An employer/insurer can violate these requirements in a number of ways. In the instant case, LWCC violated Subsection (B) by initially miscalculating the benefits and then again by improperly reducing TTD benefits to SEB. LWCC also violated Subsection (E) by failing to authorize emergency medical treatment. The majority suggests that the two separate violations of Subsection (B) give rise to only one penalty. In reaching this conclusion, the majority suggests that Mr. Fontenot has attempted to have the court “equate the word ‘claim’ with ‘violation.’ ” While I concede that each instance of a continuing violation does not give rise to a new claim, each new claim requires a violation on the part of the employer/insurer. Importantly, when an employer/insurer miscalculates the benefits due, that is a violation which gives rise to a claim. Additionally, when that same employer/insurer improperly reduces the benefits being paid from TTD benefits to SEB, that transgression is a separate violation which gives rise to a separate claim. The | (¡former action has nothing to do with the latter. In the matter before us, the workers’ compensation judge found two separate violations which gave rise to two separate claims under La. R.S. 23:1201(F). I have difficulty seeing how it can be interpreted any other way.
Through La.R.S. 23:1201(F), the employee has a means of discouraging such violations and motivating the recalcitrant or indifferent employer/insurer to comply with its obligations. As quoted by the majority, Williams v. Rush Masonry, Inc., 98-2271, p. 8 (La.6/29/99); 737 So.2d 41, 46, recognized that awards of penalties and attorney fees are “imposed to discourage indifference and undesirable conduct by employers and insurers.”
The focus is on the conduct of the employer/insurer. An employer/insurer may exhibit indifference and undesirable conduct toward the employee in different ways, at different times and/or regarding different elements of an item of benefits to which the employee is entitled. However, as I appreciate the majority’s interpretation, the employee may seek penalties to discourage the indifference and undesirable conduct of the employer/insurer only once concerning compensation benefits and only once concerning medical benefits. As such, the employer/insurer has carte blanche to behave as it wishes, and that without further consequence. Thus, the benefit/leverage given to the employee through La.R.S. 23:1201(F) is stripped away upon the first violation, and the employee is thereafter subject to the whim and caprice of the employer/insurer. Conceivably, an employer/insurer could initially refuse to pay mileage reimbursement due for medical travel, pay a $2,000.00 penalty in that regard, and then unreasonably delay payment of the more expensive medical services. In essence, the majority opinion extends the res judicata effect of the initial penalty award to all future violations by the employer/insurer, despite the employer/insurer’s continuing obligation to provide benefits.
If, however, the majority opinion authorizes not just one penalty for the duration of the employer/insurer’s obligation to pay benefits but authorizes one penalty for each 1008 claim that is filed, then the number of penalties the employee could recover would be controlled by the fortuity of the timing of the violations or his attorney’s acumen in filing multiple 1008 forms for violations occurring within the same time frame. Thus, the employee encounters a form-over-substance situation, when it is the substance that should control, i.e., the employer/insurer’s conduct, and not the form/timing of the presentation of the situation to a workers’ compensation judge. A resourceful |7employee will be better served by filing separate 1008 forms for separate violations to preserve his penalty rights under La.R.S. 23:1201 for each individual claim. Of course, as argued by counsel for LWCC, the employer/insurer would surely seek consolidation of these claims, thus returning the injured employee to the penalizing effect of this majority decision. Of course, the employer/insurer would also raise the exception of res judicata, even for future actions, if penalized once.
Essentially, the majority’s holding chips away at the quid-pro-quo arrangement contemplated by the legislature when it limited the employee to workers’ compensation benefits.

Id. at 1201-03 (alterations in original).

In Burnett, 25 So.3d 997, this court affirmed an award of multiple penalties for the defendant’s underpaymentylate payment of three mileage submissions. We held that “there were three separate mileage submissions which were either underpaid or paid late for different reasons. Multiple penalties for multiple violations are allowed by statute. See La.R.S. 23:1201(F).” Id. at 1001.

In its oral ruling, the WCJ, finding that this matter was indistinguishable from Mr. Johnson’s prior claim, held that his present claim is a single, ongoing violation and awarded him $2,000.00 in penalties. We find that it is error for the WCJ to award only one penalty in this instance, especially as Conagra admitted to numerous violations of La.R.S. 23:1201(E). To award only one penalty will, as this court stated in Haynes, 805 So.2d 215, deprive Mr. Johnson of all leverage he might have against Conagra and leave him subject to Conagra’s whim and caprice, as borne out by the instant claim. In this case, Cona-gra admitted to thirteen violations of La. R.S. 23:1201(E). Each violation entitles Mr. Johnson to penalties and reasonable attorney fees pursuant to La.R.S. 23:1201(F). Based on Conagra’s admission of guilt, we find that Mr. Johnson is entitled to a penalty based on each of the thirteen violations of La.R.S. 23:1201(E). However, since La.R.S. 23:1201(F) limits the maximum amount 18of penalties awarded pursuant to this section to $8,000.00, the WCJ’s judgment is amended to increase the penalty awarded to Mr. Johnson from $2,000.00 to $8,000.00.

Based on this finding, we further amend the WCJ’s judgment to increase the attorney fee award from $2,000.00 to $5,000.00.

DISPOSITION

Based on the foregoing findings, the judgment of the WCJ is amended to award Mr. Johnson $8,000.00 in penalties and $5,000.00 in attorney fees based on Cona-gra’s violations of La.R.S. 23:1201(E). Costs of this appeal are assessed to the defendant, Conagra Poultry Company.

AFFIRMED AS AMENDED.

DECUIR, J., dissents for the reasons assigned by Judge GREMILLION.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissenting.

_JjThe majority has issued a cogent and scholarly opinion concluding with a determination that thirteen violations of the relevant statutory law necessitates multiple penalties. However, a previous majority of this court, in considering the very same issues presented here by the very same parties determined that there were, indeed, no multiple violations. Rather there was “a single, ongoing violation.” Johnson v. Conagra Poultry Company, 31 So.3d 1067. While that court’s analysis and conclusions were different from this majority opinion, they were no less cogent and no less scholarly.

Appellee has urged that we affirm the worker’s compensation judge based primarily on the employment of the law of the ease doctrine, and I agree. There are numerous reasons for the development and application of this doctrine to include the promotion of consistency and essential fairness. Cree Oil Company v. Home Insurance Company, 653 So.2d 620. However, I would respectfully suggest that the primary reason for the doctrine is the promotion of judicial efficiency by the avoiding litigation over the same issues time and again.

In this matter, one can imagine Mr. Johnson and Conagra returning to this court again and again, trading back and forth their roles as appellant and appellee, making the same arguments, and expecting different rulings from new and 1 gdifferent panels as they have already done twice. Obviously, it is this type of panel-shopping repetition that the law of the case doctrine was developed to avoid.

It is true that the doctrine should not be applied when doing so would result in “palpable error” or “manifest injustice.” Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81 (La.1973). However, in this case, the ruling of the prior panel of this court was neither palpably erroneous nor was it manifestly injust. It was merely different. Accordingly, I respectfully dissent, finding that the worker’s compensation judge properly applied the law of the case doctrine and his award of a single penalty should be affirmed.

      . Conagra is now known as Pilgrim's Pride.

      . The record indicates that Mr. Johnson purchased prescriptions on July 31, 2009; August 21, 2009; September 9, 2009; September 24, 2009; October 15, 2009; November 2, 2009; November 17, 2009; December 7, 2009; December 9, 2009; December 21, 2009; January 6, 2010; January 8, 2010; and January 20, 2010.

      . The record contains demand letters sent by Mr. Johnson's counsel to Sedgwick on January 29, 2009, March 17, 2009, and November 25, 2009. These represent requests for payments in the amounts of $136.87 for prescriptions filled on January 27, 2009; $417.43 for prescriptions filled between January 28-Feb-ruary 23, 2010; and $240.14 for prescriptions filled on November 17, 2009. Mr. Johnson’s counsel also sent demand letters to Conagra's counsel on December 2, 2008 and June 28, 2010. He requested payments of $520.25, for prescriptions filled between December 2-16, 2009, and $2,612.92, for prescriptions filled between July 31, 2009-June 11, 2010.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terry L. COOLEY.
    No. 11-959.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Glen D. Vamvoras, Yamvoras Schwartz-ber & Hinch, Lake Charles, LA, for Defendant/Appellant, Terry L. Cooley.
    David W. Burton, District Attorney, Richard Allen Martin, First Assistant District Attorney, 36th Judicial District Court, DeRidder, LA, for Plaintiff/Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

h Defendant, Terry L. Cooley, was convicted of three counts of aggravated incest, in violation of La.R.S. 14:78.1, one count of sexual battery, in violation of La.R.S. 14:43.1, and one count of molestation of a juvenile, in violation of La.R.S. 14:81.2. The court sentenced Cooley to five years at hard labor for each aggravated incest conviction, to run concurrently. The court sentenced Cooley to two years at hard labor for the sexual battery and to seven years at hard labor for the molestation, to run concurrently with each other but consecutively to the aggravated incest penalties. He appeals. For the following reasons, we affirm.

I.

ISSUES

We shall consider whether:

(1) Cooley’s constitutional right to a full voir dire was violated where one of the jurors denied having a relative who had been a victim of sexual abuse, where the juror’s brother allegedly molested his niece and his daughter, and where the brother was executed for aggravated rape, kidnapping, and capital murder;
(2) Cooley’s rights were violated when a recused judge excused potential jurors from voir dire outside the defense’s presence when the matter had not been called for trial yet;
(3) Cooley’s right to a fair trial was violated because of the alleged prejudice resulting from joinder of sexual battery, molestation, and aggravated incest charges;
(4) Cooley was subjected to double jeopardy because molestation of a juvenile and sexual battery were billed as separate offenses;
(5) the trial court erred by not allowing special jury instructions defining “lewd and lascivious,” “force,” and “use of force;” and,
(6)the trial court erred by allowing improper opinion testimony of a non-expert witness.

J¿L

FACTS

Cooley was convicted of one count of aggravated incest for lewdly fondling his juvenile stepdaughter M.L. Cooley was convicted of a second count of aggravated incest for exposing his genitals and lewdly fondling his minor stepdaughter S.L. Cooley was convicted of a third count of aggravated incest for lewdly fondling his juvenile stepdaughter K.L. Cooley was convicted of sexual battery for touching the genitals of the adolescent S.P. without her consent. Finally, Cooley was convicted of molestation of a juvenile for exposing S.P.’s breast as well as for rubbing and blowing on her stomach.

III.

LAW AND DISCUSSION

(1) Voir Dire

The record shows that the voir dire questionnaire asked whether a juror, the juror’s family member, or the juror’s close acquaintance had been a victim of sexual abuse. Juror Francis Powell answered “no” to this query. Cooley alleges that, following the verdict, defense counsel learned that law enforcement had investigated complaints that Juror Powell’s brother, Rexford Powell, had sexually assaulted a niece and his biological daughter.

These allegations arose during the investigation of other sex crimes for which Juror Powell’s brother was prosecuted: a 1985 Louisiana case and a 1991 Texas case. Rexford Powell was acquitted of the charges alleged in the first case, but he was convicted of aggravated rape, kidnapping, and capital murder at the conclusion of the 1991 trial. The State of Texas executed Rexford Powell in 2002.

| ¡¡Cooley complained that he had been denied his constitutional right to a full voir dire examination of prospective jurors and to challenge jurors peremptorily. Cooley asserted that Juror Powell’s incorrect answer denied him his right to full disclosure of any matter that could affect a potential juror’s attitude.

During a hearing on Cooley’s motion for a new trial, Robert McCullough, the officer who originally investigated the initial complaints against Rexford Powell, revealed that the niece who had indicated Rexford Powell might have been the masked person who sexually assaulted her was not related to Juror Powell. She was the niece of Rexford Powell’s wife by blood relation.

During investigation of the Texas case, law enforcement learned that Rexford Powell’s daughter had made allegations to an unknown source that Rexford Powell had molested her. The Beauregard Parish law enforcement did not investigate the daughter’s complaints, and they did not arrest Rexford Powell in connection with those allegations.

If a false statement of a juror on voir dire is discovered during trial, the defendant may move for a mistrial, and the motion may be granted if the defendant was prevented from receiving a fair trial. La.Code Crim.P. art. 775. In a post-trial context, the matter can be raised in a motion for new trial.

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
|4(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; or
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

La. Code Crim.P. art. 851.

“The motion for new trial is based upon the supposition, and requires a showing, that injustice has been done the defendant. La.C.Cr.P. art. 851. Regarding the misstatements of jurors, the defendant must show that he was prejudiced by the misstatement for a new trial to be warranted.” State v. Johnson, 32,910, p. 5 (La.App. 2 Cir. 1/26/00), 750 So.2d 398, 403-04, writ denied, 00-911 (La.11/3/00), 773 So.2d 140.

First, as argued by the State, Cooley was not prevented from having a full and adequate voir dire as he has failed to show that either the State or the trial court placed unreasonable limitations on the voir dire examination by the defense:

As a general matter, an accused in a criminal case is constitutionally entitled to a full and complete voir dire examination. La. Const. Art. I, § 17. The purpose of voir dire is to determine the qualifications of prospective jurors by testing their competency and impartiality and to assist counsel in articulating intelligent reasons for exercise of cause and peremptory challenges. The scope of voir dire is within the sound discretion of the trial judge and his rulings will not be disturbed on appeal absent a clear showing of an abuse of discretion.

State v. Ball, 00-2277, p. 23 (La.1/25/02), 824 So.2d 1089, 1110, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002) (citation omitted).

| ^Second, Cooley failed to establish that Juror Powell actually lied in response to the inquiry on the jury questionnaire. The testimony of Robert McCullough was the only evidence either proffered or offered to prove the truth of the matter asserted. The niece whose complaints were investigated during the first case, the charges of which Rexford Powell was acquitted, was not the niece of Juror Powell because the niece was only related to Rex-ford Powell through his wife.

Further, Mr. McCullough was not involved in the second investigation; he learned only that Rexford Powell’s daughter had alleged to an unknown source that her father had molested her. Thus, it appears as if Mr. McCullough had only heard rumors that such sexual misconduct had occurred. As Rexford Powell was never investigated for, arrested for, charged with, or prosecuted for sexual misconduct with his daughter, the rumors were never proven or substantiated. Thus, Cooley failed to establish that Juror Powell intentionally misled the court when he answered “no” to the question asking if he, any family member, or close acquaintance had been the victim of a sex crime.

Finally, assuming, arguendo, that Juror Powell was aware of the rumor concerning his brother and his brother’s daughter, Cooley failed to show that he was prejudiced by or suffered injustice as a result of the misinformation. Cooley did not show whether Juror Powell believed his brother guilty of the misconduct, whether Juror Powell’s impartiality was affected by sympathy for his niece, or whether Juror Powell influenced his fellow jury members to find Cooley guilty.

Accordingly, this assertion is without merit.

1^(2) Recused Judge’s Participation in the Process

Cooley contends that he is entitled to relief because Cooley and his counsel were not present when potential jurors were excused from jury service by Judge Martha Ann O’Neal who was not assigned to the case and who had previously re-cused herself. Cooley asserts that the court minutes show that a judge, other than the trial judge, considered requests to be excused by potential jurors summoned for voir dire. Cooley complains that some of those potential jurors were excused outside of the presence of Cooley and defense counsel when their presence had not been waived. Cooley urges, therefore, that he was denied his right to make a contemporaneous objection.

Cooley posits that there was further impropriety because the witnesses were excused by Judge O’Neal, who had previously recused herself from Cooley’s case. Cooley contends that Judge O’Neal had no authority to excuse potential jurors from voir dire, and her actions constituted a reversible error.

The State agrees that, in the days prior to any case being called on November 15, 2010, Judge O’Neal excused several prospective jurors from the venire for good cause pursuant to La.Code Crim.P. art. 403.1 and art. 788. The same thing happened in open court on November 15, 2010, when Judge O’Neal preliminarily qualified the entire venire and granted additional excuses for good cause before resetting all cases scheduled that week to commence on November 15, 2010. The prosecution advances that Cooley and his attorney had the right to attend the preliminary proceedings but they declined the opportunity and failed to object. The State contends, therefore, that Judge O’Neal was dealing with the business of court for her own cases, which resulted in potential jurors being excused from jury service in Cooley’s case, as well.

The record shows that Judge O’Neal issued an order recusing herself from Cooley’s case as she had been employed or consulted as an attorney in a 17related juvenile proceeding. The record also indicates that seventeen different cases were listed for trial for the petit jury week of November 15, 2010, and that Cooley’s case was the first on the list. At that point, the case has not been called for trial. It was the next day that Judge Ward Fontenot called the matter for trial. It appears from the transcript of November 15, 2010, that Judge O’Neal, though expecting the jury venire to be used in Cooley’s case, anticipated the criminal petit jury venire being used in other cases besides Cooley’s.

This court examined the same issue in State v. Desoto, 06-1115 (La.App. 8 Cir. 3/14/07), 968 So.2d 146, rev’d on other grounds, 07-1804 (La.3/17/09), 6 So.3d 141. There, the defendant argued there was a defect in the proceedings because a re-cused judge participated in the process by excusing seven prospective jurors. There were several other cases on the docket, and the recused judge communicated that fact to the jury. Furthermore, the defendant’s case was the first on the trial docket. This court held that although the judge recused himself from this particular case, there were other matters pending on the trial docket, and the judge informed the jury accordingly. This court also found important that at the time jurors were excused, the case had not yet been called for trial. This court concluded that there was no reversible error.

Here, like in Desoto, this court finds that because the jury venire was called for multiple cases and because the case had not yet been called for trial, the trial court did not commit a reversible error by excusing the jurors.

(3) Joinder of Offenses

Cooley argues that there was no factual similarity between counts one through three and counts four and five. Cooley urges that joinder of the charges voided the presumption of innocence and resulted in the jury’s presumption of his lsguilt. Cooley concludes that his right to a fair trial was violated because the prejudice against him overwhelmed the presumption of innocence.

SAME OR SIMILAR CHARACTER:

Cooley first argues that the sexual battery and molestation charges are not of the same or similar character as the aggravated incest charges because the facts are not similar enough; the sexual battery and molestation did not involve a victim related to him, and the aggravated incest charges occurred over a period of time separate and distinct from the sexual battery and molestation counts.

Louisiana Code of Criminal Procedure Article 493 provides for the joinder of charges where the offenses are of the same or similar character:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

As relative felonies, all of Cooley’s charges in this case were triable by the same mode of trial; relative felonies are triable by a six-person jury, all of whom must concur in order to render a guilty verdict. La. Const, art. 1, § 17; La.R.S. 14:43.1; La. R.S. 14:78.1; La.R.S. 14:81.2; La.Code Crim.P. art. 782.

In State v. H.A., Sr., 10-95, pp. 12-13 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 43, this court discussed whether attempted aggravated incest and molestation were of the same or similar character where the victims were different and the offenses were separated by eight to fifteen years:

We have reviewed the considerations and factors set forth in [State v.] Washington [, 386 So.2d 1368 (La.1980) ] in light of the fact that a trial court’s discretion should not be disturbed unless that discretion was shown to be abused and conclude that the trial court in the present case did not err in refusing the defendant’s motion to sever. The crimes with which the defendant Rwas charged were similar in a number of respects: 1) both victims were girls who were about nine years of age when the sexual abuse occurred and/or started; 2) both victims had a familial relationship with the defendant — he was married to the mother of both victims and the victims lived with him in his home when the offenses occurred; and 3) the defendant was an authority figure in both instances, father and stepfather.
For these reasons, we find that the trial court did not err in refusing to sever the defendant’s charges and that this assignment of error is without merit.

The record shows that Cooley was charged with committing aggravated incest upon M.L. over a one-and-a-half-year period, beginning in March 2001 and ending in August 2002; the abuse began when the victim was ten and ended when she was eleven. Cooley was charged with the aggravated incest of S.L. over a nearly five-year period, beginning in March 2002, when the victim was ten, and ending in January 2007, when the victim was fourteen. Cooley was charged with committing aggravated incest upon K.L. over an almost two-year period beginning in November 2005, when the victim was twelve, and ending in September 2007, when the victim was thirteen. Cooley was then charged with committing sexual battery and molestation of sixteen-year-old S.P. on or about December 20, 2007. All charges alleged the sexually-inappropriate fondling, touching, or rubbing of a child under the age of seventeen. The record also shows that the offenses involving S.P. occurred when S.P.’s parents were out of town but on their way back home, when S.P. and her sister had returned home to await their parents’ arrival and when Cooley was supposed to be only dropping off S.P.’s brother and placing him in S.P.’s care.

As in H.A., Sr., these charges are of the same or similar character. The charges were all sex crimes involving the fondling, touching, or rubbing of pubescent female victims where Cooley was in a position of authority or perceived | ,nauthority over the victims and their siblings. Also, as H.A., Sr., which involved the lapse of several years between the offenses, the lapse of several months between the cessation of Cooley’s abuse of his stepdaughters and the date when Cooley abused his friends’ daughter is not a factor that would make the offenses dissimilar in character. See also State v. Friday, 10-2309 (La.App. 1 Cir. 6/17/11), 73 So.3d 913.

Accordingly, the trial court did not abuse its discretion in determining Cooley’s offenses to be of a similar character.

PREJUDICE:

Cooley next contends that the sexual battery and molestation charges should have been severed from the aggravated incest charges because they unfairly prejudiced Cooley and violated his right to a presumption of innocence.

“If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.” La.Code Crim.P. art. 495.1.

In State v. Brooks, 541 So.2d 801, 805 (La.1989), the supreme court discussed the grounds for a motion to sever, stating:
The motion to sever is addressed to the sound discretion of the trial court[,] and the court’s ruling should not be disturbed on appeal absent a showing of an [nabuse of discretion. State v. Williams, 418 So.2d 562, 564 (La.1982). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following:
whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant would be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.
State v. Washington, 386 So.2d 1368 (La. 1980) (citations omitted).

H.A., Sr., 47 So.3d at 42. “A defendant alleging a prejudicial joinder of offenses has a heavy burden of proof.” State v. Welch, 03-905, p. 5 (La.App. 5 Cir. 11/25/03), 864 So.2d 204, 208, writ denied, 04-171 (La.2/4/05), 893 So.2d 88.

Cooley does not argue that there was a danger that the jury would confuse the facts of the different offenses; Cooley points out no possible defenses that were confounded by the joinder, and he does not argue that the joinder resulted in the jury’s inferring that he had a criminal disposition.

Instead, Cooley maintains that he was prejudiced because the joinder resulted in a hostile jury. Yet, the defense fails to point to any evidence that the jury became hostile towards Cooley as a result of the charges against him. Moreover, Cooley does not contest the sufficiency of the evidence introduced to support his convictions, so Cooley is not asserting that jury hostility was the only or primary reason for his convictions.

Accordingly, the trial court did not abuse its discretion in denying Cooley’s claims that he was prejudiced by the join-der.

112(4) Double Jeopardy

Cooley asserts that the trial court erred in allowing Counts four and five to be billed as separate offenses and Cooley was subjected to double jeopardy. Cooley alleges that both counts occurred during the same encounter and were, therefore, not separated by time. Cooley also argues that the elements of sexual battery constitute full proof of molestation of a juvenile; thus, Cooley was charged twice for the same crime.

Louisiana has a dual test for double jeopardy. This court has previously explained:

In Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court set out the following test: “... where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of an additional fact which the other does not.”
The other standard used by the courts is the “same evidence test” as follows: “If the evidence required to support a finding of guilty of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all of the evidence introduced at trial.”

State v. Pierce, 01-94, p. 27 (La.App. 3 Cir. 10/31/01), 799 So.2d 732, 749, writ denied, 01-3312 (La.1/10/03), 834 So.2d 427 (citations omitted) (emphasis added).

SAME TRANSACTION TEST:

Under the “same transaction” test, there is no double jeopardy where there are two different offenses and where each provision requires proof of an additional distinct element that the other does not. Louisiana Revised Statutes 14:43.1 defines sexual battery:

liSA. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense. However, where the victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section.

Molestation of a juvenile is defined by La.R.S. 14:81.2:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

The second circuit has determined that, under the same “transaction test,” there is no double jeopardy for a dual conviction of sexual battery and molestation of a juvenile because each requires proof of an element that the other does not:

Sexual battery requires that the offender touch the victim on the anus or genitals or the victim touch the offender on the anus or genital. This element is not required for aggravated incest/molestation of a juvenile. Conversely, aggravated incest/molestation of a juvenile requires proof that the defendant had specific intent of arousing or gratifying the sexual desires of either person, an element not included in sexual battery. Accordingly, convictions 114for sexual battery and aggravated incest/molestation of a juvenile do not constitute double jeopardy under Blockburger.

State v. Redfearn, 44,709, p. 20 (La.App. 2 Cir. 9/23/09), 22 So.3d 1078, 1091, writ denied, 09-2206 (La.4/9/10), 31 So.3d 381.

This court adopts the second circuit’s reasoning and holds that in this case, there is no double jeopardy under the “same transaction” test.

SAME EVIDENCE TEST:

The “same evidence” test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, if the evidence necessary to support the second indictment would have been sufficient to support the former indictment, double jeopardy prohibits the second prosecution.

State v. Knowles, 392 So.2d 651, 654 (La.1980) (citations omitted).

The Redfeam court also discussed the “same evidence” test in context of sexual battery and molestation:

Application of this test is often difficult when the allegedly separate offenses arise out of one event.

In State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972), the court sustained the defendant’s claim of double jeopardy regarding a subsequent charge of indecent behavior with juveniles stemming from the same conduct for which he had been convicted of simple battery on the same juvenile. In Bonfanti, the court noted that the two charges arose from one occurrence. The evidence used to support the defendant’s previous conviction of simple battery was his use of intentional force on the juvenile by putting his hands up her dress. There was no additional evidence to support the subsequent charge for indecent behavior; thus each offense required the same evidence and subsequent prosecution of the second charge was barred as double jeopardy.
In State v. Steele, supra, [387 So.2d 1175 (La.1980),] the defendant was originally charged with three offenses, including reckless driving, DWI, and negligent injuring. He pled guilty to DWI and the charge of reckless driving was dismissed. The state then proceeded to prosecute Steele for negligent injuring. 11sWhen applying the “same evidence” test to the crimes of DWI and negligent injuring, the Supreme Court looked at the definitions of the two crimes, determined that the same evidence would not be required to convict Steele on both charges, and concluded that there was no double jeopardy as to these two charges. However, when the Steele court applied the “same evidence” test to the charges of reckless driving and negligent injuring, it concluded that the evidence to prove the second charge (i.e., negligent injuring) would have been sufficient to convict on the first charge (i.e., reckless driving). Id., at 1178. Thus, under the “same evidence” test a prosecution of the negligent injuring charge would be a violation against double jeopardy.

In State v. Sandifer, supra, [95-2226 (La.9/5/96), 679 So.2d 1324,] the defendant was charged with possession of marijuana and cocaine and possession of a weapon while in possession of a controlled dangerous substance. The defendant pled guilty to possession of marijuana, and subsequently filed a motion to quash the weapon charge. The Louisiana Supreme Court determined that the evidence of the defendant’s alleged possession of cocaine, for which he had not been convicted, provided a proper basis to support his prosecution under the weapon charge. Id., at 1330. The evidence of the defendant’s possession of marijuana was not required in order to convict him of the weapon offense, because other evidence existed sufficient to support the charge.

The circumstances in this case are analogous to those in State v. Steele, supra, and State v. Sandifer, supra. The evidence required for the conviction for aggravated incest/molestation of a juvenile is not the same evidence required for sexual battery. In this instance, we have already concluded above that the evidence was sufficient to show that Redfearn engaged in a lewd and lascivious act by fondling himself in the presence of his daughter with the specific intent of gratifying himself. Indeed, the evidence required and proven for this particular conduct is distinct from the evidence of the conduct constituting sexual battery, that is, the defendant’s rubbing of his penis on the victim’s vagina. Additionally, aggravated incest required evidence of the child’s relationship to the father by blood, marriage or adoption which was not required for the sexual battery conviction.
We therefore conclude that the defendant has not been subjected to double jeopardy in this case.

Redfearn, 22 So.3d at 1091-92.

|1fiIn this case, the sexual battery and molestation charges arise from Cooley’s conduct when he was home alone with S.P. and her siblings. The series of events began when S.P., her brother, Cooley’s son, and Cooley had been play-wrestling in the living room. Cooley began handling S.P. in a manner that made her uncomfortable, so S.P. left the living room and went into her bedroom to sleep.

The record shows that Cooley followed S.P. into her bedroom and sat at the end of her bed. Cooley directed his son to lie down beside S.P., and Cooley began rubbing S.P.’s stomach, blowing on it, and saying how hot S.P. was. Cooley continued touching and blowing on S.P.’s stomach while he lifted up her shirt and looked at her breasts. Cooley then began rubbing the inside of her thigh and grazing her private area. Eventually, Cooley directed his son to kiss S.P. After Cooley’s son kissed S.P. on the lips, Cooley directed his son to kiss her again. S.P. continued to pretend sleeping, but she rolled over onto her side in an attempt to get Cooley to stop rubbing her inner thighs. While she was in that position, Cooley unfastened her bra before waking her up and instructing her to get into her pajamas. Cooley said they were leaving, so she got up and put on her night pants and a sweatshirt.

When S.P. returned to bed, Cooley and his son came back into the room. Cooley recommenced rubbing and blowing on S.P.’s stomach while Cooley’s son, once again, lay down beside S.P. This time Cooley’s son rubbed S.P.’s stomach and breasts while Cooley also resumed rubbing S.P.’s inner thighs and vaginal area with his hand on the outside of her clothing. S.P. feigned sleep until they left.

The molestation of a juvenile charge arose from Cooley’s rubbing of S.P.’s stomach and exposing her breasts, while the sexual battery charge resulted from Cooley’s intentional touching of S.P.’s genitals. Therefore, as Cooley’s convictions arose from two distinct sets of facts, Cooley’s convictions for both |17sexual battery and molestation of a juvenile do not constitute a double jeopardy violation under the “same evidence” test.

(5) Special Jury Instructions

As part of his proposed jury instructions, Cooley requested special instructions concerning the definition of “lewd and lascivious,” “force,” and “use of force.” The trial court refused all three of the requested special jury instructions.

If either the defense or the prosecution desires a special jury charge, the trial court is required to include it, provided that it meets certain criteria:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

La. Code Crim.P. art. 807.

SPECIAL INSTRUCTION ON “LEWD AND LASCIVIOUS”

Cooley requested the following special instruction:

“Finding that act is lewd or lascivious depends upon time, place, and all circumstances surrounding its commission, including actual or implied intention of actor.”

In State v. Sturdivant, 27,680, p. 6 (La. App. 2 Cir. 2/28/96), 669 So.2d 654, 658-59 (citations omitted) (emphasis added), the second circuit mentioned that lewd and lascivious conduct should be construed within the context of facts of the case:

haThe word “lewd” means lustful, indecent and signifies that form of immorality which relates to sexual impurity carried on in a wanton manner. The word “lascivious” means tending to incite lust, indecent, obscene and tending to deprave the morals in respect to sexual relations. Further, the word “lewd” is identified with obscenity and community norms for morality. Finding that an act is lewd or lascivious depends upon the time, the place and all of the circumstances surrounding its commission, including the actual or implied intention of the actor.

In order to be mandatory, the special jury charge must be pertinent and require no further explanation. La.Code Crim.P. art. 807.

In this case, there was no possible legitimate excuse or explanation for Cooley’s actions toward S.P. that would clear Cooley’s actions from the taint of lust, inde-centness, or sexual immorality. Cooley was an adult who deliberately, intentionally, and inappropriately touched a teenager without her consent. This is not the type of behavior that can be justified as an acceptable social interaction. Further, as Cooley was not performing a medical examination, he was not acting in any capacity that would justify his actions of viewing S.P.’s breasts or touching her stomach, inner thighs, and vaginal area. Thus, the instruction was not pertinent to this case. Additionally, because of its lack of pertinence, this special jury instruction would have probably confused the jury and would have required additional explanation.

SPECIAL JURY INSTRUCTION ON “FORCE”

Cooley also requested the following special instruction:

In Count 5 of the bill of information, the state has charged the defendant with Molestation of a Juvenile, by committing a lewd and lascivious act by use of force, violence, duress, menace, psychological intimidation, or threat of great bodily harm. This requires proof of forcible means of overcoming the will or the resistance of the victim in addition to any mere touching or minimum effort exerted in performing the lewd act.

hflAs stated above, a special jury charge is only mandatory if it is entirely correct. First, Cooley’s jury instruction was incorrect because he was only charged with “the use of force, duress or psychological intimidation.” Therefore, the inclusion of the factors “menace” and “threat of great bodily harm” was incorrect. Furthermore, the requested jury charge was incorrect because the State was not required to prove that the molestation happened by force as the bill of information charged that the molestation occurred through use of force, duress, or psychological intimidation.

SPECIAL JURY INSTRUCTION ON “USE OF FORCE”

Finally, Cooley requested the following special jury charge defining “use of force:”

“Use of force” element of molestation of a juvenile refers to use of a forcible means of overcoming will or resistance of victim, requiring a use of force in addition to any mere touching or minimum effort exerted in performing lewd act against victim, which force is substantially greater than or substantially different from force necessary to commit offense of indecent behavior -with a juvenile.

This special jury instruction is also not entirely correct. It implies that force is an essential element of indecent behavior with juveniles when “use of force” is not even mentioned in La.R.S. 14:81. Therefore, the requested jury instruction incorrectly stated that a use of force was “necessary to commit offense of indecent behavior with a juvenile.”

(6) Opinion Testimony

Cooley argues that the trial court allowed improper rebuttal evidence by allowing Mr. Greg Gill to testify after granting Cooley’s Motion in Limine on the very subjects to which Mr. Gill testified. Cooley contends that the rebuttal testimony stating Cooley’s stepdaughters were acting out sexually and that Cooley |2nwas grooming the girls for future sexual activity was improper because it constituted an opinion, and Mr. Gill was not qualified as an expert witness. Cooley advances that this defeated the purpose of the trial court’s prior ruling excluding the testimony of an expert witness who was going to give the same testimony.

The State responds that the defense made no contemporaneous objection on this basis during the direct or redirect testimony of Mr. Gill. Though Mr. Gill testified twice, Cooley’s only objection during Mr. Gill’s testimony was that a question had been asked and answered. Further, the State never asked Mr. Gill about “grooming;” instead, the prosecution simply asked Mr. Gill why the Department of Child and Family Services, “DCFS,” involved K.L. in this case, and Mr. Gill responded that, based on Cooley’s history with the two older children, DCFS was concerned that K.L. was being groomed for sexual abuse. Mr. Gill did not elaborate or define “grooming,” and the State did not ask for any such explanation.

The prosecution points out that Mr. Gill’s testimony about M.L. and S.L.’s sexual acting out was not elicited by the State. Rather, the defense specifically brought up the matter in cross-examination when it asked about notations in the DCFS file about the girls’ sexual acting out. As it was the defense that brought the matter to light, defense counsel, naturally, did not object to the introduction of the information into evidence. Therefore, there is no basis for Cooley’s complaint on appeal.

As argued by the prosecution, the testimony regarding M.L. and S.L.’s sexual acting out was elicited by the defense. The State did not solicit this testimony. Finally, even if the evidence were improperly admitted, the admission was a harmless error because this testimony comprised an insignificant portion of the total evidence against Cooley.

_kiv.

CONCLUSION

For the reasons above, Terry L. Cooley’s convictions and sentences are affirmed.

AFFIRMED.

      . Initials are being used in this case to protect the identity of the victims in accordance with La.R.S. 46:1844(W).

      . In this case, evidence of either offense— aggravated rape or molestation of a juvenile'— would have been admissible as other crimes evidence under La.Code Evid. art. 412.2 at the trial of the other offense to show the defendant's lustful disposition toward young children. Despite the lapse of time between the two offenses, the identity of the defendant as the perpetrator and the similar character of the offenses remained unchanged. See State v. Williams, 05-317 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, writ denied, 06-638 (La. 10/6/06), 938 So.2d 64 (upholding the trial court’s denial of a motion to sever a charge of rape committed from 1998 to 2002 and a charge of aggravated rape committed from 1986 to 1992). See also State v. Dickinson, 370 So.2d 557 (La.1979) (upholding the denial of a motion to sever in a case that involved the kidnapping-attempted rape of one victim and then, a year later, the kidnapping-attempted rape of another victim); State v. Mitchell, 356 So.2d 974 (La.), cert. denied, 439 U.S. 926, 99 S.Ct. 310, 58 L.Ed.2d 319 (1978) (upholding the denial of a motion to sever in a case involving three rape victims over a five-month period).


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Troy Lee MUNDY.
    No. 11-1000.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Don M. Burkett, District Attorney for the Eleventh Judicial District, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    George Lewis Higgins, III, Higgins Law Office, Pineville, LA, for Defendant/Appellant, Troy Lee Mundy.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|]In this criminal case, Defendant, Troy Lee Mundy, appeals his second degree murder conviction, alleging that the trial court erred in denying his motion to suppress, in denying his motion in limine relative to other crimes evidence, and in not giving a limited jury instruction as to the proper usage of other crimes evidence. For the following reasons, we find no error by the trial court and affirm Defendant’s conviction in its entirety.

FACTS AND PROCEDURAL HISTORY

On May 7, 2007, William Wayne Meshell (the victim) was struck repeatedly in the back of his head while fishing on the bank of Toledo Bend Lake near the Pendleton Bridge in Sabine Parish. He was found dead, face down in the water, with his pockets turned out and his fishing equipment missing. Several witnesses identified Defendant as having been in the area and driving a distinctive, green pickup truck. After a routine traffic stop on May 9, 2007, in Bienville Parish, Defendant was arrested when a license plate check on the vehicle he was driving listed that vehicle as being stolen. Upon further investigation, Defendant was charged with the murder of Mr. Meshell.

Defendant was indicted on October 4, 2007, for the first degree murder of Mr. Meshell. The charge was later amended, alleging Defendant committed the second degree murder of Mr. Meshell with the specific intent to kill or inflict great bodily harm.

On November 30, 2009, Defendant filed a motion to suppress evidence seized in the traffic stop of May 9, 2007, that led to his arrest and the subsequent murder charge. The trial court denied the motion, without reasons, on March 1, 2010. Defendant then filed a motion in limine on April 27, 2010, seeking to limit the State’s evidence that suggested Defendant was “a hardened criminal with an |2extensive criminal background” and to prohibit mention of any previous criminal convictions or pending criminal indictments.

On June 3, 2010, the State filed a notice pursuant to La.Code Evid. art. 404(B) informing Defendant it intended to admit evidence at trial of Defendant’s unauthorized use of the vehicle, the May 5, 2007 murder of Harvey Pickering in Rapides Parish, and an aggravated assault against a public servant in Texas. The identified purpose of the evidence was “to show proof of [D]efendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident regarding the offenses” and also to show Mr. Pickering’s murder was “part of a system of crimes committed” by Defendant. Defendant filed another motion in limine on June 21, 2010, seeking to limit reference to these criminal charges. The trial court also denied this motion.

After a trial by jury, on March 9, 2011, Defendant was found guilty of the second degree murder of Mr. Meshell. On appeal, Defendant presents the following three assignments of error.

ASSIGNMENTS OF ERROR

Assignment of Error No. 1

The Trial Court erred in denying the [Defendant’s Motion to Suppress in that it allowed the evidence from the illegal arrest of the [Defendant to be introduced into trial.

Assignment of Error No. 2

The Trial Court erred in not granting Defendant’s Motion in Limine in that it allowed improper other crimes evidence to be introduced.

Assignment of Error No. 3

The Trial Court erred in not including a limiting instruction in the jury charge as to the proper usage of other crimes evidence.

1 ^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no actionable errors patent.

DISCUSSION OF THE RECORD

On May 9, 2007, Trooper Matt Jones of the Louisiana State Police came upon a truck stopped on the shoulder of Louisiana Highway 151 in Bienville Parish. Defendant was putting gas in the truck, and Trooper Jones stopped to offer assistance. Defendant “mumbled something” and “quickly took his gas can and put it in the back of the truck.” Trooper Jones “noticed there was still a pretty good bit of gas left in the gas can,” but Defendant seemed “ready to go, get out of there.”

Defendant then got in the truck and proceeded to leave. As Trooper Jones began to leave, he ran a check on the license number of Defendant’s truck and “got an [sic] NCIC hit” saying the vehicle had been reported stolen. The NCIC report indicated Defendant might be driving the vehicle and was “possibly wanted for murder.” Trooper Jones followed the truck to a gas station in Arcadia and contacted the Bienville Parish Sheriffs Office. Defendant was arrested without incident, and his vehicle was secured with evidence tape on the doors and windows.

The Rapides Parish Sheriffs Office contacted Trooper Jones and “wanted to make sure that [Defendant’s] clothes were secured for evidence.” Trooper Jones recalled Defendant’s pants had a lot of blood on them “from the knee down.” The clothes were seized and transferred to the Rapides Parish Sheriffs Office as was the vehicle.

|4DNA samples taken from Defendant’s clothing matched the DNA from a blood sample of the victim, Mr. Meshell. Additional DNA from Mr. Meshell was identified on the head of a ratchet jack handle found in the bed of Defendant’s truck. An autopsy determined that Mr. Meshell died from blunt force trauma, and the dimensions of one injury were consistent with the dimensions of the ratchet jack handle.

Sabine Parish law enforcement had been investigating Mr. Meshell’s homicide for two or three days at the time Defendant was stopped. Information released through news media brought telephone calls from people who recognized Defendant or his vehicle. On the night of the murder, a vehicle matching the description of Defendant’s vehicle rammed a San Augustine, Texas, police officer’s car. During the incident, the suspect’s cap fell into the street. Subsequent crime lab tests identified Mr. Meshell’s DNA on the cap.

After “everything settled down,” Detective Jasper Bay of the Rapides Parish Sheriffs Office told Trooper Jones his department had a murder warrant for Defendant’s arrest. Evidence at the hearing of the motion to suppress, however, indicated the warrant was not issued until after Trooper Jones arrested Defendant. Trooper Jones testified that the basis for the stop was the stolen vehicle report. Nothing at any of the hearings or at trial showed the origin of the alleged murder warrant on the NCIC report.

Defendant’s mother, Thelma Mundy, testified at the hearing on the motion to suppress that the vehicle Defendant was driving at the time of the arrest was his vehicle, but that it was titled in her name. She stated that Defendant had “total permission” to use the truck.

On the Tuesday prior to Defendant’s arrest, Ms. Mundy saw someone else operating the vehicle and mentioned it to Deputy Dale Whitstine, the brother of RMs. Mund/s brother-in-law. The next morning, Deputy Whitstine brought Ms. Mundy a picture of Jason White and said White “had been in a lot of trouble.” Ms. Mundy identified White as the person she had seen operating the vehicle. Deputy Whitstine said she “would have to put an unauthorized use of a motor vehicle against this boy” in order for him to talk to White. White told Deputy Whitstine that he was unaware the truck was not in Defendant’s name. Ms. Mundy testified, “[E]veryone knew that it was [Defendant's truck.”

Contrary to Deputy Whitstine’s affidavit that provided the basis for the “bolo” (be on the lookout) on the truck, Ms. Mundy said that she did not have an ongoing problem with Defendant using the vehicle without authorization. She stated that she believed Deputy Whitstine knew the vehicle belonged to Defendant and that she only had a problem with someone else driving the truck because it was still in her name.

Deputy Whitstine’s affidavit stated that Ms. Mundy said her son used her truck to get a chain saw and that he let White use the vehicle. Defendant was supposed to return the truck by five o’clock, but she had not seen him after that time. At the hearing on Defendant’s motion to suppress, Ms. Mundy testified that the information in the affidavit was “not even true,” that she never told Deputy Whitstine Defendant could not use the truck, and that Deputy Whitstine “knew that that truck was [Defendant]’s.” When Ms. Mundy learned of a warrant a few days after the affidavit, she called the Sheriffs office and told them “[t]his was not meant for [Defendant] because that is [Defendant’s truck.” She “thought it was for Jason White.”

At trial, Ms. Mundy again testified that she “did not request a warrant against [Defendant].” She stated that she spoke to Deputy Whitstine when she saw someone else driving the truck because she “did not want another person that [she] | r,did not know[,] and [Deputy Whitstine] told [her] this guy was breaking into houses and stuff[,] and the guy had something in the back of the truck.” She believed what Deputy Whitstine told her about, the identity of the man she saw driving the truck and his activities.

In contrast, Deputy Whitstine testified at trial about speaking to Ms. Mundy on May 1, 2007. She had called him to her house “and she said [Defendant] was avoiding her[,] and she wanted her truck back.” She had let Defendant use the truck, but “[h]e was supposed to return the truck by 5:00 o’clock or call her.”

By the next morning, Defendant had still not returned the truck. Deputy Whitstine spoke to Ms. Mundy again and took her a photo of White to see if she recognized him as the person she had seen in the truck on the prior day. “On May ... [Deputy Whitstine and Ms. Mundy] decided that [he] would write up warrants for unauthorized use on [Defendant] and also Jason White[,] and [he] did so.” Deputy Whitstine also placed the vehicle into the NCIC system. He testified that he and Ms. Mundy “had agreed that [he] would go ahead and make an arrest warrant out for both subjects that was [sic] in the truck.”

ASSIGNMENT OF ERROR NO. 1:

Defendant argues that the trial court erred in denying his motion to suppress because the original information Deputy Whitstine placed into the NCIC, on which Trooper Jones relied, was erroneous. He contends the “fellow officer doctrine” invalidates Trooper Jones’s probable cause to arrest Defendant.

The collective knowledge doctrine, or “fellow officer rule[,”] provides that in certain circumstances, several officers’ observations can be aggregated to establish the probable cause needed for a warrantless search or seizure, or to obtain a search or arrest warrant under the |7Fourth Amendment. The courts have applied this doctrine where teams of officers, central dispatches, police computer systems, police from other jurisdictions or agencies, and undercover officers have shared information leading to the establishment of probable cause.

Kimberly J. Winbush, Application in State Narcotics Cases of Collective Knowledge Doctrine or Fellow Officers’ Rule Under Fourth Amendment — Cocaine Cases, 4 A.L.R.6th 599 (2005).

We find that the application of this doctrine does not call for reversal of the trial court’s denial of Defendant’s motion to suppress. “A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent abuse of that discretion.” State v. Wilder, 09-2322, p. 2 (La.12/18/09), 24 So.3d 197, 198 (citing State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Vessell, 450 So.2d 938 (La.1984)). “The appellate court looks at the totality of the evidence presented at the hearing for the motion to suppress when reviewing a trial court’s denial of the motion. State v. Sherman, 03-1198 (La.App. 3 Cir. 3/2/05), 896 So.2d 1194.” State v. Kinchen, 11-9, p. 7 (La. App. 3 Cir. 6/8/11), 71 So.3d 344, 349 (quoting State v. Moreau, 05-544, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 598, 601).

Here, the trial court based its ruling on credibility and factual determinations. Although Ms. Mundy testified at the hearing and at trial that Defendant was authorized to use the truck as his own, Deputy Whitstine testified at trial that she agreed to make out an arrest warrant for unauthorized use of the truck. Ms. Mundy agreed she had authorized the charge, but she did not intend it to affect Defendant. Thus, the trial court could have reasonably found the NCIC entry was made in good faith.

| ¡^Further, when that good faith information was made known and available to Trooper Jones, he had reasonable suspicion to further investigate, even if the NCIC entry had not included information about Defendant being wanted for murder. Defendant “quickly took his gas can and put it in the back of the truck” although the can still had “a pretty good bit of gas left” in it. Defendant “was real quick, he was ready to go, get out of there.” Defendant’s pants had a lot of blood on them “from the knee down.” Hence, the NCIC information about the murder warrant, whether correct or incorrect, was not essential to further investigation which would have disclosed the same evidence.

Defendant- failed to prove any justification for setting aside the trial court’s findings, and he failed to show any abuse of the trial court’s discretion. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2:

Defendant argues that “[t]he Trial Court erred in not granting [his] [m]otion in [l]imine in that it allowed improper other crimes evidence to be introduced.” Our review of the record shows the trial court never ruled on either of Defendant’s two motions in limine concerning other crimes evidence. The first motion, filed on April 27, 2010, was the subject of the May 20, 2010 hearing. The minutes and transcript of that hearing, however, indicate that the trial court did not deny the motion. Rather, the State indicated it would be filing a notice advising Defendant of what it sought to introduce. The trial court ordered the State to identify other crimes evidence it intended to use within fourteen days. The State filed the notice on June 3, 2010.

Defendant filed a second motion in li-mine on June 21, 2010. At the hearing on June 24, 2010, after a short discussion, defense counsel suggested that the parties brief the issue. The State indicated it would file a video along with its brief. jflThe trial court ordered Defendant to submit any argument on these motions within thirty days and allowed the State fifteen days to respond. Thereafter, the matter would be deemed to have been submitted. We note that the record contains no activity or ruling concerning the motions after that point in time.

“A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon.” State v. Wilson, 10-519, p. 6 (La.App. 5 Cir. 1/11/11), 59 So.3d 1259, 1263 (citing State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, writ denied, 03-409 (La.10/10/03), 855 So.2d 334).

Additionally, at trial, several witnesses testified about the facts of the unauthorized use of a vehicle charge and the Rap-ides Parish murder charge. Defendant made no objection to any of this testimony. Thus, this court is presented with neither trial court rulings nor rulings on objections at trial to review. Ironically, defense counsel himself, during his cross-examination of Dr. Jessica Esparza, forensic DNA analyst at the North Louisiana Crime Lab, commented, in the presence of the jury, “[y]ou know [Defendant] murdered Harvey Pickering at Cleco Lake[,] and I thought that y’all would have his blood up here.” Thus, this assignment of error presents nothing for this court to review.

ASSIGNMENT OF ERROR NO. 3:

Defendant further contends that the trial court erred by failing to instruct the jury about evidence concerning other crimes. The record, however, contains no indication Defendant ever requested such a jury instruction. Further, he had no objection to the jury instructions as written. Therefore, this assignment of error lacks merit.

| ^DISPOSITION

Defendant’s conviction is affirmed.

AFFIRMED.

      . NCIC is an acronym for National Crime Investigation Center.

      . Defendant also incorporates his memoranda in support of his motions to suppress and in limine into his appellate brief. Such a practice is not allowed; therefore, we will not consider any argument set forth in those ear-Her memoranda submitted to the trial court. Uniform Rules — Courts of Appeal, Rule 212.4; Bennett v. Hughes, 03-1727 (La.App. 4 Cir. 5/26/04), 876 So.2d 862, writ denied, 04-1599 (La.6/30/04), 877 So.2d 122.