author: KEATY, Judge.

text:
    LAFAYETTE PARISH SCHOOL BOARD Through Its Sales and Use Tax Division v. IMAGINE MANAGEMENT, LLC, et al.
    18-531
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Jill Marie Kraemer, Koury & Hill, Post Office Box 52025, Lafayette, Louisiana 70505, (337) 889-5409, Counsel for Plaintiff/Appellant: Lafayette Parish School Board, Through its Sales and Use Tax Division
    Drew M. Talbot, Rainer Anding & Talbot, 8480 Bluebonnet Boulevard, Suite D, Baton Rouge, Louisiana 70810, ( (225) 766-0200, Counsel for Plaintiff/Appellant: Lafayette Parish School Board, Through its Sales and Use Tax Division
    Imagine Management, LLC, c/o Toby Dore, 416 ½Vermilion Street, Apartment C, Lafayette, Louisiana 70501
    Cajun Hostel LLC, c/o Toby Dore, 416 ½Vermilion Street, Apartment C, Lafayette, Louisiana 70501
    Toby Dore, In Proper Person, 416 ½Vermilion Street, Apartment C, Lafayette, Louisiana 70501
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

The Lafayette Parish School Board, through its Sales and Use Tax Division (the Collector), appeals a trial court judgment denying its claims against the Defendants, Imagine Management, LLC, Cajun Hostel, LLC, and Toby Dore. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On February 25, 2018, the Collector filed a "Petition for Rule to Show Cause in Summary Sales and Occupancy Tax Proceeding" against the following named Defendants:

IMAGINE MANAGEMENT, LLC, a Louisiana limited liability company sometimes hereinafter referred to as "Taxpayer," who has at all times pertinent maintained business activities in Lafayette Parish, Louisiana doing business as CAJUN HOSTEL;
CAJUN HOSTEL LLC, a Louisiana limited liability company domiciled in Lafayette Parish; and
TOBY DORE individually, a major domiciliary of Lafayette Parish, Louisiana....

The petition alleged, in pertinent part, as follows:

4.
IMAGINE MANAGEMENT, LLC is registered with the Louisiana Secretary of State's office as a Louisiana limited liability company formed on February 14, 2011, and domiciled in Lafayette Parish, with TOBY DORE serving as its manager and its registered agent at all times pertinent hereto....
5.
On or about March 4, 2016, IMAGINE MANAGEMENT, LLC, through its owner, TOBY DORE, registered with Petitioner as a dealer for sales, use and occupancy tax purposes, for its operation of a hostel/ guesthouse/ bed and breakfast business in Lafayette Parish, Louisiana, under the trade name "CAJUN HOSTEL."...
6.
Upon information and belief, at all times pertinent hereto, Taxpayer was engaged in business as a "dealer" as defined in La. R.S. 47:301(4)(f)(ii) by furnishing sleeping rooms, cottages, or cabins at residential locations (as defined in La. R.S. 47:301(6)(a)(ii) ) in Lafayette Parish to transient guests for a fee, as well as by offering sales at retail of other taxable items. In the course of its operations as such, Taxpayer became liable for Lafayette Parish sales, use and occupancy taxes collected from customers on taxable transactions, as well as the taxes it failed, refused or neglected to collect, pursuant to La. R.S. 47:337.17 and 337.18.
....
17.
Upon information and belief, at some point prior hereto, TOBY DORE ceased operation CAJUN HOSTEL through the limited liability company, IMAGINE MAMAGEMENT LLC, that he had registered with Petitioner as being the operator of CAJUN HOSTEL, and without informing Petitioner, began to operate the same business either individually or through his new entity, CAJUN HOSTEL LLC, and is presently operating in Lafayette Parish in one of those capacities.

According to the petition, after the Taxpayer failed to file monthly Lafayette Parish sales and occupancy tax returns and failed to remit any of the taxes collectible from their customers for taxable periods between June 2016 and September 2017, the Collector, in accordance with La.R.S. 47:337.48(A), computed the amount of taxes, plus penalties and interest, owed to it. Thereafter, on August 11, 2017 and November 7, 2017, the Collector mailed two "15-DAY NOTICE OF INTENT TO ASSESS" letters, which were addressed as follows:

Account Number: 00055047 CAJUN HOSTEL Filing Status: M APT C 416 ½ EAST VERMILION ST Delinquent Status: NPA LAFAYETTE, LA 70501 Legal Name: IMAGINE MANAGEMENT LLC

The letters warned:

NOTICE: You have fifteen calendar days from the date of this notice to either: (a) pay the amount proposed to be assess; (b) pay under protest in accordance with R.S. 47:337.63, and then file suit as provided for in that Section; or (c) submit a protest in writing to this Department [pursuant] to La. R.S. 47:337.49 fully disclosing the reasons, together with facts and figures in substantiation thereof, for objecting to this Department's determination and request a hearing with this Department.

The Collector further alleged in its petition that, after having not received a response within either of the two fifteen-day periods, it issued the Taxpayer "formal Notices of Assessment" by certified and regular mail on September 11, 2017 and December 11, 2017. As a result of the Taxpayer failing to pay the amounts due, the Collector hired an attorney to file this suit. Exhibit G to the Collector's petition indicates that it sought to recover $ 4,062.05 from the Taxpayer, plus additional interest and penalties accruing after January 31, 2018, along with 10% statutory attorney fees on all amounts due. Paragraph 14 of the Collector's petition asserted (emphasis in original):

The time for appeal of the Assessments lapsed without Taxpayer making any payments or exercising any of its other options available under La. R.S. 47:337.51, 337.63, or 337.64. Thereafter, pursuant to La. R.S. 47:337.51, those Assessments, including additional statutory interest and penalties accrued thereon, became final and established liabilities of Taxpayer. Furthermore, those Assessments became, and remain, the equivalent of judgments pursuant to La. R.S. 47:337.68.

Requests for Admission directed to Imagine Management, LLC, to Cajun Hostel, LLC, and to Mr. Dore were attached to the Collector's petition.

Citing pertinent provisions of the Uniform Local Tax Code, the Collector sought an Order directing the Defendants to show cause: 1) why judgment should not be rendered against the Defendants and in favor of the Collector; 2) why Defendants should not be enjoined from doing business until the sums owed are paid; 3) why local law enforcement should not be ordered to enter the premises of the Defendants to cause all business to cease and to post a notice outside the premises stating that the "business has been shut down for the failure to pay Lafayette Parish sales taxes;" and 4) why a lien should not be placed on the Defendants' property to secure payment of the amounts due.

The trial court set the rule to show cause requested in the Collector's petition for hearing on April 9, 2018, and ordered the Defendants to respond to the discovery propounded to them. By way of an ex-parte letter to the trial court dated March 28, 2018, Mr. Dore requested that the hearing be continued because of a "likely conflict" with his teaching duties at the University of Louisiana. Mr. Dore also asked for more time to respond to requests for admissions. In the letter, Mr. Dore admitted that "[t]his suit was personally served to me on March 2nd 2016," and he indicated that he had a meeting scheduled with a local attorney on the day after the original hearing date. The trial court reset the hearing to April 16, 2018, but denied Mr. Dore's request for an extension of time to answer discovery. The hearing was then continued on behest of the trial court to May 14, 2018. After entertaining oral arguments, the trial court stated in open court that it was "going to deny [the]

judgement" sought by the Collector. Written judgment was signed on May 18, 2018. The Collector timely appealed and is now before this court asserting the following assignments of error:

1. The District Court erred by denying Plaintiff's/Appellant's claims for relief against Defendants/Appellees, Imagine Management, LLC and Cajun Hostel, LLC, despite said defendants not filing any defenses in the Suit Record nor appearing at the evidentiary hearing.

A. The Collector properly filed a prima facie correct summary court proceeding against the three named defendants in accordance with the provisions of La. R.S. 47:337.61.
B. None of the Defendants filed defenses in the Suit Record as required by La. R.S. 47:337.61(2).

2. The District Court erred by denying Plaintiff's/Appellant's claims for relief against Defendant/Appellee, Toby Dore, despite said defendant not filing any defenses in the Suit Record.

3. The District Court erred by overruling Plaintiff's/Appellant's objections to Defendant/Appellee, Toby Dore, presenting testimony and defenses at the evidentiary hearing despite not filing any defenses as required by La. R.S. 47:337.61(2).

4. In the alternative, and only in the event this Court considers the merits of Plaintiff's/Appellant's underlying claims against each of the named Defendants/Appellees, the District Court erred in finding that the Collector did not assert and establish a valid sales and occupancy tax claim against each of the Defendants/Appellees.

On July 5, 2018, this court mailed Mr. Dore a notice of the lodging of this appeal which informed him that his brief needed to be filed by August 28, 2018. Mr. Dore emailed this court on July 23, 2018 to request an extension of at least thirty days to file an appellee brief. Therein, he claimed that he was vacationing abroad and would not return until August 15, 2018. He further stated that he had "been representing [him]self up to this point and most likely will need to hire an attorney for this procedure which will take time." This court granted Mr. Dore's request and extended his briefing deadline to September 19, 2018. Thereafter, no appellate brief was filed by or on behalf of Mr. Dore.

DISCUSSION

The [Collector's] assignments of error call into question both the trial court's interpretation of the various pertinent statutes of Title 47 of the Louisiana Revised Statutes, as well as the court's findings as to the merits and evidence. As the appeal contains mixed questions of law and fact, we apply the manifest error standard of review.

Livingston Par. Sch. Bd. ex rel. Sales & Use Tax Div. v. Hwy 43 Cornerstore, LLC , 12-103, p. 5 (La.App. 1 Cir. 5/23/12), 93 So.3d 709, 713.

At the May 14, 2018 hearing, the Collector was represented by counsel and Mr. Dore appeared pro se. At the start of the hearing, after Mr. Dore identified himself for the record, the trial court questioned Mr. Dore as to how he was "related to" Imagine Management, upon which Mr. Dore stated:

I'm the owner. Imagine Management is now acting as Cajun Hostel, LLC, so I have two (2) companies. Both companies were named in a lawsuit, as well as me personally. But Imagine Management is no longer in operation.
BY THE COURT:
Okay. And how do you want to proceed? The issue involved in here, when you have a company you can represent yourself but you can't represent a company. Okay? A lawyer - an individual can't represent someone, which a company is a separate judicial entity. Do you understand?[ ]
BY MR. DORE:
And I'm named personally.
BY THE COURT:
Is he named personally?
BY MS. KRAEMER:
Yes, he is named personally, Your Honor.
BY THE COURT:
Okay. Then he can represent himself in the matter.

As of the date of the hearing, none of the Defendants had filed any pleadings into the record. The Collector offered into evidence its original petition and an Affidavit of Correctness executed by the Collector's Assistant Director who certified that Exhibits A through H, which accompanied the petition, were true copies of documents contained in the Collector's records. The trial court allowed the Collector's exhibits to be admitted in the record. Counsel for the Collector then noted that Mr. Dore had been named as a defendant pursuant to La.R.S. 47:337.21.

Mr. Dore was not sworn in at the hearing. Nevertheless, upon questioning by the trial court, Mr. Dore explained that, in the past two years, he had met with someone in the Collector's office regarding the taxes the Collector sought to recover from him in this matter. When Mr. Dore began testifying about the merits, counsel for the Collector objected on the basis that the proscribed time for presenting defenses had elapsed. Thereafter, the trial court asked Mr. Dore whether he had considered hiring an attorney. Mr. Dore replied that he had spoken with "close to a dozen attorneys about this case." When the trial court permitted Mr. Dore to testify about conversations he allegedly had with someone in the Collector's office and about whether the taxes were being assessed against other similar businesses, counsel for the Collector again objected. The trial court overruled the objection and allowed Mr. Dore to continue testifying in defense of his failing to pay the taxes assessed against the Defendants. The following colloquy ensued:

BY THE COURT:
It's very confusing. I'm going to deny your judgement.
BY MS. KRAEMER:
You're going to what?
BY THE COURT:
I'm denying it.
BY MS. KRAEMER:
It's a final assessment, Your Honor.
BY THE COURT:
Well, I'm still denying it. Y'all can take it up to the Third Circuit and let them figure it out.

In a case procedurally similar to the matter before us now, the first circuit held:

Taxpayers did not file any pleadings in the instant case. They did not propound discovery, nor did they plead affirmative defenses of any kind. The only action found in the record that was taken by Taxpayers was their appearance in court on October 31, 2011. There Raymond Goodwin testified on his own behalf, and apparently on the behalf of Hwy 43 Cornerstore, L.L.C.
Louisiana Revised Statutes 47:337.61(2) states, in pertinent part:
All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. (Emphasis added )
It is clear by the language of this statute that if Taxpayers had any defenses to present, they should have been filed with the court prior to October 31, 2011. The trial court was erroneous to allow and accept the testimony of Mr. Goodwin, which we believe influenced the trial court's judgment. Since Mr. Goodwin's testimony should not have been considered by the trial court, it will not be considered in this opinion.

Livingston Par. Sch. Bd. ex rel. Sales & Use Tax Div. v. Hwy 43 Cornerstore, LLC , 12-103, p. 6 (La.App. 1 Cir. 5/23/12), 93 So.3d 709, 714.

At first glance, the transcript of that hearing seems to indicate that the trial court ruled against the Collector on the merits. Upon further review, however, we are convinced that after listening to the unsworn testimony of Mr. Dore, the trial court failed to issue a ruling on the matter before it, instead directing the Collector to appeal to this court to obtain a ruling on the merits.

" 'The judgment of the trial court is presumed correct, absent any evidence in the record which would indicate to the contrary.' Steinhoff v. Steinhoff , 03-24, p. 5 (La.App. 3 Cir. 4/30/03), 843 So.2d 1290, 1294. Moreover, appellate courts generally will not consider issues that were not addressed by the trial court...." Montgomery v. State Farm Fire & Cas. Co. , 12-320, p. 9 (La.App. 3 Cir. 11/14/12), 103 So.3d 1222, 1229, writ denied , 12-2711 (La. 2/8/13), 108 So.3d 91. Additionally, "[t]his court is not one of first impression but, instead, an appellate court reviews evidence that was before the trial court." Smith v. Ieyoub , 01-1517, p. 4 (La.App. 3 Cir. 3/6/02), 809 So.2d 1256, 1259.

Because the trial court herein failed to issue a ruling on the merits of the Summary Sales Tax Proceeding brought by the Collector, this court has no jurisdiction to decide this appeal. Accordingly, we must reverse the appealed judgment and remand this matter to the trial court for a rehearing.

DECREE

For the foregoing reasons, the judgment signed on May 18, 2018, is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed against Toby Dore.

REVERSED AND REMANDED.

Cooks, J., concurs.

      Louisiana Revised Statutes 47:337.61, titled "Collection by summary court proceeding authorized," provides, in pertinent part:
      In addition to any other procedure provided in this Chapter or elsewhere in the laws of this state, and for the purpose of facilitating and expediting the determination and trial of all claims for taxes, penalties, interest, attorney fees, or other costs and charges arising, there is hereby provided a summary proceeding for the hearing and determination of all claims by or on behalf of the taxing authority, or by or on behalf of the collector, for taxes and for the penalties, interest, attorney fees, costs or other charges due thereon, by preference in all courts, all as follows:
      ....
      (2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.

      The Order was worded, in pertinent part, as follows:
      Why judgment should not be rendered herein in favor of Petitioner and Taxpayer/Defendant, IMAGINE MANAGEMENT, LLC, D/B/A CAJUN HOSTEL, in solido with Defendants, CAJUN HOSTEL LLC and TOBY DORE (SSN: XXX-XX-XXXX) individually, who are personally liable pursuant to La.R.S. 47:337.21, for the delinquent Lafayette Parish sales taxes, with accrued interest and penalties, duly assessed to IMAGINE MANAGEMENT, LLC for its operations as CAJUN HOSTEL for the months of June of 2016 and September of 2016 through September of 2017, AND for the delinquent hotel (occupancy) taxes duly assessed to IMAGINE MANAGEMENT, LLC for its operations as CAJUN HOSTEL for the months of July of 2016 through September of 2017....

      We note that the trial court erred in not allowing Mr. Dore to represent the two LLCs that he owned as the amount the Collector sought to recover from the Defendants totaled less than $ 5,000.00. See La.R.S. 37:212(C) (emphasis added) which provides:
      Nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars , on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative....

      Louisiana Revised Statutes 47:337.61(4) provides, in pertinent part (emphasis added):
      Whenever the pleadings filed on behalf of the taxing authority, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant's knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case , and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party .

      Louisiana Revised Statutes 47:337.21, titled "Termination or transfer of business," provides as follows:
      A. If any dealer liable for any tax, interest, or penalty levied hereunder sells his business or stock of goods or quits the business, he shall make a final return and payment within fifteen days after the date of selling or quitting the business. His successor, successors, or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest, and penalties due and unpaid until such time as the former owner shall produce a receipt from the collector showing that they have been paid, or a certificate stating that no taxes, interest, or penalties are due. If the purchaser of a business or stock of goods fails to withhold purchase money as above provided, he shall be personally liable for the payment of the taxes, interest, and penalties accrued and unpaid on account of the operation of the business by any former owner, owners, or assigns.
      B. In the case of a dealer who has quit a business, and who subsequently opens another similar business under the same ownership, whether that ownership is individual, partnership, corporation, or other, that dealer shall be liable for any tax, interest, or penalty owed by the original business.

      Louisiana Revised Statutes 47:337.61(2) provides, in pertinent part (emphasis added):
      All defenses , whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing , and no court shall consider any defense unless so presented and filed . This provision shall be construed to deny to any court the right to extend the time for pleading defenses, and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Civil Procedure.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael Lee WALLS
    18-730
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Asa A. Skinner, District Attorney, Lea R. Hall, Jr., Assistant District Attorney, P.O. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    S. Christie Smith, IV, SmithAdvocates, LLC, 300 Courthouse Street, P.O. Drawer 1528, Leesville, LA 71496, (3370) 239-2244, COUNSEL FOR DEFENDANT/APPELLANT: Michael Lee Walls
    Court composed of Sylvia R. Cooks, Billy H. Ezell, and Candyce G. Perret, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On July 21, 2016, Defendant, Michael Lee Walls, was indicted on one count of molestation of a juvenile when the offender has control or supervision over the juvenile, in violation of La.R.S. 14:81.2(A)(1) ;

and one count of indecent behavior with a juvenile under the age of thirteen, in violation of La.R.S. 14:81(A)(1) and 14:81(H)(2). The molestation charge was based upon allegations that Defendant, while having supervision of the juvenile, had "anal sexual intercourse" with S.H. The indecent behavior charge was based upon facts alleging Defendant chased S.H.'s sister, J.H., "while wearing Sponge Bob underwear with his penis hanging out."

Following a multi-day trial, a unanimous jury found Defendant guilty as charged on both counts on March 23, 2017. The trial court ordered a Pre-Sentence Investigation (PSI). On May 24, 2017, the trial court sentenced Defendant to eighteen years at hard labor for the molestation of a juvenile charge and eighteen years at hard labor without the benefits of probation, parole, or suspension of sentence for the indecent behavior charge. Noting the case involved "an issue of having occurred on multiple occasions to multiple victims," the trial court ordered the two sentences to run consecutively to each other.

On May 26, 2017, Defendant filed a "Motion to Reconsider Sentence," arguing his sentences were excessive as they were partially based upon disputed evidence and that Defendant's age (sixty-three years old) and health meant the thirty-six year total sentence was essentially a life sentence. The trial court denied the motion.

In late December, 2018, this court noticed, and the State raised in its brief, that Defendant's brief was devoid of any page references to the record, in violation of Uniform Rules-Courts of Appeal, Rule 2-12.4(A), which requires an appellant's brief to contain "reference to the specific page numbers of the record and citations to the authorities on which the appellant relies."

Defense counsel was verbally notified he had until January 7, 2019, to file an amended brief containing record references, with a written order stating the same sent on December 26, 2018. On January 11, 2019, this court received a faxed courtesy copy of said brief which was unsigned and included a certificate of service noting "a copy of this Brief has been served on all parties at the addresses set forth below by depositing same into the U.S. Mail on the 31[sic] day of October 2018." On January 16, 2019, this court received a signed original of Defendant's Supplemental Brief. The brief was postmarked on January 14, 2019. A review found, after comparing the page references to the record, none of them are accurate aside from the references pertaining to Defendant's assignment of error number one.

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, there is an error in the commitment order that requires correcting.

At sentencing, the trial court ordered the sentences to be served consecutively. Although the minutes of sentencing correctly reflect the sentences were ordered to be served consecutively, the commitment order does not provide so, stating "[t]his sentence shall be concurrent with any or every sentence the offender is now serving[.]" There is no other statement in the commitment order as to the imposition of the sentences to run consecutively. Therefore, we order the commitment order to be corrected to accurately reflect the trial court's imposition of the sentences to run consecutively to one another.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends he should receive a new trial on the grounds the trial court erred in denying his for cause challenge to strike a juror, Ms. Shawn Moak. Defendant alleges this forced him to use a peremptory challenge to remove her. However, as noted by the State, there is no evidence in the record to support Defendant's claim that he used a peremptory strike to remove Ms. Moak.

On March 21, 2017, after Ms. Moak had been tentatively accepted as a juror, the trial court held a hearing outside the presence of the jury regarding use of certain evidence under La.Code Evid. art. 412.2. At that time, the trial court also took up the issue of Defendant's claim that, while being transported to the courthouse that morning, he and Ms. Moak "made eye contact and I could just tell by the expression on her face that she recognized me." Defendant stated that he was dressed in the same civilian clothing he was wearing during court and that he was unshackled while riding in the front seat of the marked police unit in which he was being transferred. Defendant testified he immediately informed Ben West of the Vernon Parish Sheriff's Office, the officer transporting him to the courthouse, whom Defendant claimed told him "not to worry about it."

Deputy West confirmed he was in uniform while transporting Defendant. Deputy West testified they saw two ladies walking across the street, and Defendant recognized one of them as a juror in his case. Subsequently, Ms. Shawn Moak was called into the courtroom and the following exchange occurred between Ms. Moak and the trial court:

Q. Okay. My question that I have to you, Ms. Moak, is as far as today is concerned, at any time have you seen Mr. Walls outside of the courthouse or the courtroom today?
A. No, sir.
Q. You're clear about that?
A. Yes, sir.
Q. All right.
A. Today?
Q. Today; outside of the courthouse or the courtroom today?
A. No, sir.

Ms. Moak acknowledged she did park in the parking lot in which Defendant testified he saw her. The trial court then ruled:

All right, as far as I'm concerned gentlemen, Ms. Moak has indicated that she did not see Mr. Walls. If she did, I have no reason to -- no indication from her that she's not being truthful. She looked me dead in the eye whenever she answered those questions and I believe her. So, I don't think we have a problem. Let's proceed.

At that point, defense counsel objected to the ruling but noted "I think we can readdress that when we -- when we do our back strikes." As noted by the State, there is no evidence that Ms. Moak was ever removed from the jury or that Defendant used a peremptory challenge to remove her. Also, the record includes a list of the venire members removed by peremptory challenges. Although the list indicates Defendant did in fact use all twelve of his peremptory challenges, Ms. Moak was not one of them.

In State v. Odenbaugh, 10-268, pp. 23-27 (La. 12/6/11), 82 So.3d 215, 236-38, cert. denied , 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012), the supreme court stated:

The United States Constitution's Sixth Amendment guarantees the accused the right to a trial by an impartial jury. The Louisiana Constitution Article I, Section 17 (A) provides that a defendant has a right to challenge jurors peremptorily, with the number being fixed by law at twelve. LSA-C.Cr.P. art. 799. When a defendant uses all of his peremptory challenges, a trial judge's erroneous ruling depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. State v. Jacobs, 99-1659, p. 5 (La.6/29/01), 789 So.2d 1280, 1284 ; State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683, 686 ; State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526, 534 ; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280. A trial court is vested with broad discretion in ruling on challenges for cause, and its rulings will be reversed only when a review of the entire voir dire reveals the trial judge abused its discretion. Robertson, 92-2660, 630 So.2d at p. 1281. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. Cross, 93-1189 at 1192, 658 So.2d at 686 ; State v. Robertson, 92-2660 at 3-4, 630 So.2d at 1280 ; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous ruling depriving an accused of a peremptory challenge is a substantial violation of his constitutional and statutory rights and constitutes reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686 ; State v. Bourque, 622 So.2d 198, 225 (La.1993).
"A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied." State v. Jones, 474 So.2d 919, 926 (La.1985). However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Robertson, 92-2660 at p. 4, 630 So.2d at 1281. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate "(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges." Id. at 1281. In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.
....
[W]hile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror's responses cannot be considered in isolation and that a challenge should be granted, "even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred]." State v. Jones, 474 So.2d 919, 929 (La.1985) ; See State v. Frost, 97-1771, p. 4 (La.12/1/98), 727 So.2d 417, 423 ; Maxie, 93-2158 at 16-17, 653 So.2d at 535 ; State v. Hallal, 557 So.2d 1388, 1389-1390 (La.1990) (per curiam); State v. Brown, 496 So.2d 261, 264-65 (La.1986) ; State v. Smith, 430 So.2d 31, 38 (La.1983). Yet a refusal to disqualify a prospective juror on grounds he is biased does not constitute reversible error or an abuse of discretion if, after further examination or rehabilitation, the juror demonstrates a willingness and ability to decide the case fairly according to the law and evidence. State v. Howard, 98-0064, pp. 7-10 (La.4/23/99), 751 So.2d 783, 795-797 [.]

Louisiana Code Criminal Procedure Article 799, in pertinent part, provides that "[i]n trialS of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant." In State v. Richards , 17-1135, p. 16 (La.App. 3 Cir. 6/6/18), 247 So.3d 878, 891, this court noted:

However, even if the trial court abused its discretion when it denied the challenges for cause, this assignment of error has no merit in that Defendant cannot show prejudice. As noted, to prove reversible error, a defendant is required to show an erroneous denial of a challenge for cause and the use of all his peremptory challenges. See State v. Turner , 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612, writ denied , 97-2761 (La. 2/20/98), 709 So.2d 773.
In the current case, for each potential juror challenged for cause and subsequently denied by the trial court, Defendant had peremptory challenges available to excuse the juror after the trial court denied his challenge for cause. He was not forced to accept a juror he felt was prejudicial to his case because all of his peremptory challenges were used. Defendant has failed to show prejudice in this case.

The issue with Ms. Moak arose on the morning of March 21, 2017. Defendant had peremptory challenges remaining when the trial court denied his challenge for cause, using the last of them on March 22, 2017. Defendant had the opportunity to remove Ms. Moak from the jury and apparently chose not to do so.

Furthermore, Defendant cannot prove the trial court erred in denying his challenge for cause. As noted above, the trial judge is vested with broad discretion in ruling on challenges for cause.

This is necessarily so because the trial court has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties' attorneys. State v. Lee , 93-2810, p.9 (La.5/23/94), 637 So.2d 102, 108. Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record. Id.

State v. Munson , 12-327, p. 9 (La.App. 5 Cir. 4/10/13), 115 So.3d 6, 12, writ denied , 13-1083 (La. 11/22/13), 126 So.3d 476.

Defendant stated he and Ms. Moak made eye contact and he knew she recognized him. Ms. Moak specifically stated she had not seen Defendant outside of the courtroom, and the trial court stated he believed her statements. We find no support for Defendant's contention the trial court abused its discretion. Therefore, this assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR

As noted above, Uniform Rules-Courts of Appeal, Rule 2-12.4(A) requires an appellant's brief to contain:

(9) the argument, which shall contain:
(a) appellant's contentions, with reference to the specific page numbers of the record and citations to the authorities on which the appellant relies,

As noted by the first circuit in State v. Hawkins , 633 So.2d 301, 308 (La.App. 1 Cir. 1993) :

According to Uniform Rules-Courts of Appeal Rule 2-12.4, an argument on an assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. This Court may disregard an argument on that error in the event suitable reference to the record is not made.

Additionally, Uniform Rules-Courts of Appeal Rule 2-12.4(B)(3) specifically states "The court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made."

Defendant's second assignment of error is that the trial court erred in allowing testimony from a retired Georgia police officer regarding an out-of-court statement Defendant gave admitting to a prior sexual act with one of the victims. His third and fourth assignments of error allege he was prejudiced by the State's reference to, and introduction of, a witness who the court ruled could not testify during closing. None of these assignments of error contain a single record reference wherein the reference has any connection to the issues discussed. Furthermore, the record contains six volumes and 1357 pages.

Despite this court providing Defendant an opportunity to correct and supplement his brief, Defendant failed to provide a single appropriate record reference to support assignments of error two, three, and four. Accordingly, this court will dismiss these assignments of error.

ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, Defendant contends that:

The sentence(s) were excessive considering the age of the [D]efendant and the conduct for which he was accused of in the case-at-bar, being premised on the other alleged behavior in other jurisdictions for which he was not on trial in the instant case.

This is the same argument presented in Defendant's motion to reconsider. On May 24, 2017, the trial court sentenced Defendant to eighteen years at hard labor without benefits on each count with the sentences to run consecutively "due to this being an issue of having occurred on multiple occasions to multiple victims."

Under La.R.S. 14:81.2(B)(2), Defendant's conviction for molestation of a juvenile carried a possible fine of "not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both." Under La.R.S. 14:81(H)(2), Defendant's conviction for indecent behavior with a juvenile carried a sentencing range of "imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence."

Louisiana courts have laid out the following guidelines with regard to excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La. 6/30/00), 765 So.2d 1067 ; 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Furthermore, in State v. Baker , 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied , 07-320 (La. 11/9/07), 967 So.2d 496, writ denied , 07-1116 (La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit's three factor test from State v. Lisotta , 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes.

The following is Defendant's argument for why his sentences are excessive:

The age and health of [Defendant] make plain that the sentence imposed by the court is effectively a life sentence. The [D]efendant suggests that the harshness of the sentences is a by-product of the court's view of alleged behavior in other jurisdictions for which he was not on trial in the instant case and for which he has been neither prosecuted nor convicted.

As noted by the State, Defendant does not specifically contest the consecutive nature of his sentences, nor does he give any support for his contention the trial court based its sentencing decisions on unrelated other crimes. Given the vague nature of Defendant's argument, we will examine this claim as a bare excessiveness claim using the factors specifically enumerated in Baker : nature of the crime, nature of Defendant, and sentences imposed for similar crimes.

With regard to the crimes in question, Defendant was convicted of molestation of a juvenile against S.H., who was thirteen at the time of the offense; and one indecent behavior with a juvenile against J.H., who was eleven at the time of the offense. The molestation conviction resulted from Defendant anally penetrating the thirteen-year old victim, while the indecent behavior resulted from Defendant chasing the eleven-year old victim around the living room with his penis hanging out of his underwear. As both of Defendant's present convictions involve sex offenses against children, there can be no question regarding the severity of the offenses. The trial court also noted the girls were both in counseling as a result of these incidents.

Defendant, at the time of the crimes, was a sixty-three-year old man, married with six children of his own and three stepchildren. Although Defendant cites his age as a reason why his sentence is excessive, the trial court noted Defendant appears to be in good health, despite some prior issues with cancer. Defendant has worked as an aircraft mechanic following his time in the United State Navy between 1971 and 1977. There was no history of drug or alcohol abuse reported; however, Defendant has a prior conviction for child molestation from 1977.

In State v. A.B.M. , 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021, this court upheld a fifteen-year sentence for molestation of a juvenile to run consecutively with a fifteen-year sentence for incest. This court found the sentence was not an abuse of discretion given the defendant was the victim's father and the victim was frequently entrusted to his care, the victim was only eleven years old, and she would deal with emotional issues for the rest of her life. Likewise, the second circuit in State v. Freeman , 44,419 (La.App. 2 Cir. 6/24/09), 13 So.3d 1241, upheld a nineteen-year sentence for a man convicted of molestation of a juvenile over whom he had control where the facts indicated the defendant had forced his nine-year-old stepdaughter to perform oral sex on him and doctors indicated she had been anally penetrated.

In State v. Armstrong , 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350, the second circuit upheld a maximum sentence for indecent behavior for a sixty-five-year old convicted of fondling his nine-year-old stepgranddaughter. The court noted:

Defendant abused a position of trust and responsibility for his own perverted sexual interests without regard to the lifelong harm he could cause to the victim. There is no excuse, justification or mitigation for such misconduct. On the showing made, we do not find an abuse of discretion. The sentence is not constitutionally excessive and is adequately supported by the record.

Id . at 1351.

We cannot say the trial court abused its discretion in imposing consecutive eighteen-year sentences where Defendant, a man in his sixties, anally penetrated a thirteen-year old and chased an eleven-year old around the room with his penis hanging out of his underwear, both occurring as a result of Defendant's friendship with the family and occurring while Defendant was entrusted with supervision of the child in question. This assignment of error lacks merit.

DECREE

For the foregoing reasons, this court orders the commitment order to be corrected to accurately reflect the trial court's order that the sentences are to be served consecutively to one another. In all other respects, Defendant's convictions and sentences are affirmed.

AFFIRMED WITH INSTRUCTIONS.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Stephan Tyler BRAGG
    18-650
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Justin C. Harrell, Attorney At Law, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163, (504) 585-7329, COUNSEL FOR DEFENDANT/APPELLANT: Stephan Tyler Bragg
    James P. Lemoine, District Attorney, Thirty-Fifth Judicial District Court, Renee W. Nugent, Assistant District Attorney, P. O. Box 309, Colfax, LA 71417, (318) 627-2971, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   GREMILLION, Judge.

On August 12, 2016, Defendant, Stephan Tyler Bragg, was charged by bill of information with ten counts of sexual battery, in violation of La.R.S. 14:43.1. The ten counts were alleged to have occurred between October 25, 2014, and June 9, 2016, and all concerned a juvenile victim, K.R.D. (DOB: 10/25/2005).

On April 26, 2018, a 10-2 jury found Defendant guilty of five counts of sexual battery and not guilty of the remaining five counts. On May 24, 2018, the trial court sentenced Defendant to forty-five years imprisonment at hard labor with the first twenty-five years to be served without benefits on each count and ordered the sentences to run concurrently. Although defense counsel objected to the introduction of a district attorney's file related to Defendant's prior conviction for carnal knowledge of a juvenile, no objection was made as to the actual sentence, nor was a motion to reconsider sentence ever filed.

Defendant now appeals his convictions and sentences, raising three assignments of error: (1) there is insufficient evidence to support his convictions; (2) his rights were violated by the trial court allowing Jada Bragg, the victim's cousin, to testify under La.Code Evid. art. 801(D)(1)(d) as a first reporter; and (3) his rights were violated when the State introduced into the record evidence related to his prior conviction for carnal knowledge of a juvenile during sentencing. For the following reasons, Defendant's convictions and sentences are affirmed.

FACTS

The State's first witness was Captain James Watkins of the Grant Parish Sheriff's Office. Captain Watkins testified that he was promoted from Detective to Captain in February of 2017. He noted that, as a detective, his job included investigating everything from petty theft to murder. Captain Watkins also testified there was no special unit in Grant Parish for addressing sex crimes. Captain Watkins testified that he was involved in the investigation of Defendant, and said he has worked on roughly thirty sex-offense cases. Captain Watkins stated the investigation into Defendant began when Katie Devine and William Bragg, the victim's parents, brought her into the station on June 10, 2016.

Captain Watkins described the sheriff's process for investigation of juvenile sex offenses, noting they immediately remove the juvenile from the room and ask the parents not to question the child about the incident to avoid influencing the child's answers when they are questioned by someone at the Rapides Advocacy Center. Captain Watkins testified that he was in an adjacent room with the ability to speak to the interviewer during the victim's recorded interview, but that only the forensic interviewer was in the room with the victim. After the victim disclosed that she was abused by Defendant, her uncle, Captain Watkins obtained an arrest warrant.

Captain Watkins acknowledged that he did not schedule a medical exam of the victim, noting that in his experience, a medical exam would not have been helpful since the allegations involved "using the digits." Captain Watkins noted the victim stated there had been three to four months between the last time she was abused and when it was reported because "[s]he was scared to tell anybody what was going on so nobody knew um, she would just tell her parents that she did not want to go over there, and they didn't think nothing of it, and they continued to bring her over there." It was noted that Defendant is the brother of the victim's father.

On cross-examination, Captain Watkins stated that in June 2016, there were four detectives at the Grant Parish Sheriff's Office. Captain Watkins acknowledged he had not had any special training regarding sex offenses since his time at the police academy. He further noted that during the victim's interview at the advocacy center, the only people able to monitor the interview would be the detective investigating the case and a representative from the Department of Child and Family Services, if they had become involved. Captain Watkins acknowledged the victim told the interviewer that Defendant had, on multiple occasions, penetrated her vagina digitally and that it hurt badly every time he did so. Captain Watkins again admitted that he made the decision not to seek a medical examination in the case. When asked if he was familiar with what a hymen was or how a doctor would conduct a physical exam, Captain Watkins stated, "I am not a doctor." Captain Watkins also verified that he did not speak with Dominique Bragg or Donna Tyler, Defendant's wife and mother-in-law, as their names were not mentioned by the victim during her interview.

On re-direct, Captain Watkins noted one of the reasons he did not have a vaginal examination done was because it was unlikely there would be evidence present, given the victim said it had been months since the last time Defendant had touched her. He also stated that neither Defendant's wife nor mother-in-law have attempted to speak with him since Defendant was arrested.

The State's next witness was the victim's first cousin, Jada Bragg, who testified that she was sixteen-years old and in the tenth grade. She stated that Defendant was her uncle, her mother's brother, and that she called him Tyler. Jada testified that she is three years older than K.R.D. and is like a big sister to K.R.D. She testified that one night, K.R.D. spent the night with Jada and her mother after they had all been at Defendant's house earlier in the day. Jada noted that Defendant, his wife Dominique, their daughter Layla, and Dominique's mother lived in the house. She testified they had been at Defendant's home for no more than three hours. Jada noted that while she and Layla, who was only about two or three years old, did not have a great relationship, Layla and K.R.D. were very close and Layla would always cry when K.R.D. left.

Jada testified that Layla wanted K.R.D. to spend the night, which was normal, but K.R.D. did not want to stay, whereas she normally would spend the night. Jada stated that when she asked K.R.D. why she did not want to stay with Layla, K.R.D. initially would not give her a reason but then started crying. Jada testified that, after a couple of tries, K.R.D. managed to tell her she did not want to stay because Defendant would touch her and it hurt, eventually telling Jada that he would touch her "lower region." Jada asked why K.R.D. had not told her before, and K.R.D. told her that she did not want "Layla to have a broken up family." Jada stated that K.R.D. did not want her to tell anyone, but that after about an hour she was having a panic attack and told her mother, who then told K.R.D.'s mother, Katie. Jada noted that knowing what K.R.D. was going through made her sad, stated everything she had said was the truth, and no one had spoken to her about what to say at trial.

Jada testified that she told her mother what K.R.D. had told her initially and that her mother told K.R.D.'s mother. She seemed very unsure of whether she had ever spoke to Captain Watkins or when and where any conversation with him took place. She acknowledged that Defendant's home had wood floors but was unsure if the house was on a slab or if it was elevated off the ground. She restated that she thought it was weird that K.R.D. did not want to stay at Defendant's with Layla the way she normally did, which led to K.R.D. telling Jada about Defendant touching her.

The State's next witness was Ms. Shelly Bell, a Christus Health employee previously employed by the Rapides Children's Advocacy Center. Ms. Bell noted she had a Bachelors' degree in Family and Child Studies from Louisiana Tech, a week of intensive training on being a forensic interviewer, then continuing training and education while working for the advocacy center. She noted that as a forensic interviewer, her goal was "just to hopefully not traumatize [the children] more." She testified she interviewed K.R.D. on June 13, 2016, at the advocacy center office in Alexandria. Ms. Bell stated that once the interview began, it was her interview, so while a detective might have questions or concerns about certain facts, they did not tell her explicitly what to ask.

Ms. Bell testified that immediately after an interview, she would stop the recording and make a DVD for the detective to keep for their file. She also stated that if requested, another member of the office would transcribe the video, then she would review it and deliver it to the detective. Ms. Bell testified at the end of her interview with K.R.D., she utilized an anatomical drawing to verify what part of the body K.R.D. was discussing, giving the following reasoning:

Throughout the interview um, she was very reluctant to - - to refer to a certain name for any body part. Um, and so in that case, it was either just a gesture or down there, or where I use the restroom, so just for clarification, to make sure there were no assumption[s] whatsoever, I went and got the drawing and had her circle the body part on her body that she was talking about.

Ms. Bell stated she believed K.R.D. was nine at the time of the interview. The State then played the video of K.R.D.'s interview with Ms. Bell while distributing a copy of the transcript of the interview to each member of the jury.

K.R.D.'s Interview at Rapides Children's Advocacy Center

After describing the layout of the room, Ms. Bell discussed art with K.R.D. K.R.D. stated that she had an eleven-year-old brother and a five-year-old sister. She told Ms. Bell she went back and forth between her mother and father, who do not live together, but do live in the same town. K.R.D. stated she was ten years old. She described the living arrangements at both her mother's and her father's homes. K.R.D. then noted that she "used to go to [her] uncle's." She noted her uncle's name is Stephan, but they call him Tyler.

K.R.D. told Ms. Bell that her uncle, Defendant, would touch her "[w]hen [she] was sleeping and sometimes it woke [her] up." She also stated that "it hurt very badly." She stated Defendant touched her more than once and that it would happen when she and her brother spent the night at Defendant's house. K.R.D. stated that typically, she and her brother would sleep on a pull-out sofa, but that Defendant would often make her sleep with her two-year old cousin, Layla, whose bed was directly next to Defendant's side of his bed. She could not remember the first time Defendant had touched her, but she described an instance where she and her brother were asleep on the sofa bed and Defendant came in and woke her up by touching her. Although she said there were no lights on when it happened, she knew it was Defendant "[b]ecause [she] could see him." She stated she told him to quit, but he pretended he was sleeping. She would not name the part of her body that he was touching but stated it "hurt down there" and noted she uses that part of her body "[t]o use the restroom."

K.R.D. told Ms. Bell that Defendant was touching her with his hand and fingers underneath her clothes, noting he would sometimes put his fingers inside her and move them. She noted that whenever she would tell him to stop, he would pretend to be asleep, but she remembered one occasion where Defendant asked her "if it felt good" when she woke up and she told him "no, it hurts badly." She stated she would tell her parents she did not want to go to Defendant's house, but they would send her so they could go to work and she "didn't want to tell them because [she] was scared." K.R.D. stated all of the occasions when Defendant would touch her happened at night.

When asked if she had ever spoken to anyone about what happened, the only person K.R.D. mentioned was Jada, noting "how they found out was I told my cousin." Additionally, when Ms. Bell asked K.R.D. directly "[h]ave you talked with anyone else about what all has gone on with Tyler[,]" K.R.D. gave a negative answer. She told Ms. Bell it had happened "[a]t least 10 or 12 times," noting Defendant had built a new house about a year before, and Defendant's touching her only happened in the new house. K.R.D. then indicated on an anatomical drawing, introduced as State's Exhibit 2, that Defendant had been touching her on and inside her vagina. K.R.D. and Ms. Bell then discussed 4-H camp before ending the interview.

On cross-examination, Ms. Bell noted that she worked on a number of sexual abuse cases in the three-and-a-half years she was with the Rapides Children's Advocacy Center. When pressed on whether it is normal to not have a SANE (Sexual Assault Nurse Examiner) examination done in a case where there is an accusation of digital penetration, Ms. Bell responded "yes, there is sometimes [sic] where there's an exam done, and there's sometimes [sic] where there is not an exam done." Ms. Bell did not recall whether she ever spoke to Captain Watkins about having a physical examination done on K.R.D.

The State then called the victim, K.R.D., who testified that her birthday is October 25, and she would be thirteen on October 25, 2018. K.R.D. repeated that she promised to tell the truth in court and acknowledged no one had told her what to say in court. K.R.D. testified that she is currently living with someone named Alicia, K.R.D.'s siblings, and Alicia's three children. She stated Alicia's children were seventeen, fifteen, and thirteen, while K.R.D.'s brother Jamison was almost fourteen and her younger sister was six. K.R.D. testified that she and Jada share secrets and tell each other about things that happen to them.

K.R.D. stated she had not seen Defendant in about two years but noted that when she visited him, he lived with his wife Dominique, his mother-in-law Donna, and his daughter Layla. K.R.D. stated she was sad because she had not seen Layla in nearly two years and that they were close then, noting she would watch Layla with supervision and saw her frequently. K.R.D. recounted Layla had a bedroom, Donna had a bedroom, and Defendant and Dominique had a bedroom, but Layla slept in a "crib bed" in her parents' room. She described the bed as "one side was opened and the other had like a gate thing." K.R.D. recalled that her older brother would stay at Defendant's house with her and that they would sleep on the couch, except when Layla wanted to sleep with K.R.D.; then K.R.D. and Layla would sleep in Layla's bed in Defendant's bedroom. K.R.D. testified Layla would sleep against the closed side of the bed and K.R.D. would sleep on the open side, noting she was able to fit because she wasn't very tall.

She recalled going to the advocacy center a few days after she told Jada what had happened to her. She also recalled truthfully telling Jada that Defendant had done things to her and hurt her, but she could not remember the exact words she had used when speaking to Jada. She testified that Defendant would touch her on her "private parts," noting she meant the same location she had indicated on the anatomical drawing during her interview. K.R.D. stated Defendant would touch her with his hands and wake her up sometimes, clarifying that she believed he may have touched her other times when she did not wake up. She testified that she could not really see anything when she would wake up, and she could not really explain how, but she knew it was Defendant touching her with his hands.

K.R.D. testified the open part of Layla's bed, where she would sleep, was right up against Defendant's side of the bed he shared with his wife. She stated that when she would move away from him, he would typically stop touching her. Because of the location of Layla's bed, Defendant did not have to get out of bed in order to touch her. She testified she woke up to Defendant touching her "[m]ore than like five (5)" times. She knew it was Defendant touching her because he was moving his hand and she could see him in the bed next to her, and there was no one else close to her but Layla, who was asleep.

K.R.D. also related that on one occasion, she was sleeping on the pull-out part of the sofa with Layla and Defendant had laid down with them because he did not want Layla sleeping by herself. Defendant had again been touching her and asked her either if she liked it or if it felt good, and she told him that it hurt. She noted she was afraid to tell anyone what was happening because she was afraid no one would believe her. Although she would sometimes say she did not want to go to Defendant's house, she was afraid of saying the reason. She testified that she knew Defendant had not touched her in his old house, so she was at least nine when he started touching her, and she was ten when she told Jada. K.R.D. testified the last time Defendant touched her was a "couple of weeks" before she told Jada.

In accordance with Jada's testimony, K.R.D. recalled having cake at Defendant's house earlier in the day before telling Jada what had happened when they were alone later that night. She stated Jada then told her mother, who in turn called and told K.R.D.'s mother. She recalled Jada crying when K.R.D. told her what happened and insisting they should tell someone, but K.R.D. did not want to tell anyone because she did not know what to do. She noted that she asked Jada not to tell anyone.

On cross-examination, K.R.D. stated that Defendant's house had wood floors. She also testified that the pull-out sofa she and her brother usually slept on was in the living room. She testified that Defendant's fingers were inside of her some of the times. She knew that Defendant had touched her at least five times because that was how many times she woke up while he was touching her. She also stated she believed it had been more than a few weeks, closer to months, between the last time Defendant touched her and when she told Jada. She noted that she never had any bleeding as a result of Defendant touching her. After stipulating that K.R.D. is not Defendant's spouse, the State rested.

Defendant's first witness was his mother-in-law, Donna Tyler. She testified that she's been living with Defendant and his wife since 2014 and was living with them at the time of the events in question. Ms. Tyler testified that she began living with Defendant and his wife around the time they moved into their home, which was a remodeled house raised on piers. She testified that she had her own bedroom in the house. She stated the floors of the home were wood throughout the house. She confirmed that when Layla was little, she slept in a baby bed in the master bedroom next to Defendant's side of the bed against the wall.

Ms. Tyler testified that whenever K.R.D. would spend the night, her brother was always with her and they would sleep on the couch. She stated she never saw either of the kids sleep in the room with Defendant and his wife and that she would often stay up late with the kids watching TV. Ms. Tyler testified that she was a light sleeper who goes to bed late and would have heard if Defendant was walking around the house, because the floors and doors squeak. She also stated that she slept with her bedroom door open.

Defendant then called his wife, Dominique Laray Bragg, to the stand. Mrs. Bragg stated that the home she and Defendant shared was an older three-bedroom, two-bath house on stilts, remodeled in 2014. Mrs. Bragg stated Layla's bed was against the wall, not the bed, and that there was a bed rail on the side of it. She also noted the entire house had hard wood floors. Like Ms. Tyler, Mrs. Bragg testified that K.R.D. always slept in the living room with her brother on the pull-out sofa, never in the room with the Braggs. Mrs. Bragg also testified that she was a light sleeper and that Defendant would not have been able to get out of bed without her knowing it. Defense counsel then rested.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the verdict "is contrary to the evidence." Defendant cites State v. Marshall , 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, cert. denied , 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007), to argue the victim's identification of Defendant as her abuser is not free from "internal contradiction or irreconcilable conflict with the physical evidence" and thus cannot be the basis for his conviction.

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Sexual battery is relevantly defined in La.R.S. 14:43.1(A) as:

[T]he intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or 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, directly or through clothing, when any of the following occur:
....
(2) The victim has not yet attained fifteen years of age and is at least three years younger than the offender.

As noted by the fourth circuit in State v. Simmons , 621 So.2d 1135, 1138 (La.App. 4 Cir. 1993), amended on rehearing , sexual battery "prohibits the touching of the anus or genitals of the victim where he or she has not yet attained fifteen years of age, when the offender is more than three years older than the victim." In the instant case, the attorneys stipulated Defendant's date of birth is October 25, 1987, and K.R.D.'s date of birth is October 25, 2005. As the touching was alleged to have happened between October 25, 2014, and June 9, 2016, there is no question the State proved K.R.D. was less than fifteen years old and Defendant is more than three years older than her. Defendant's argument is, essentially, that K.R.D.'s testimony is not credible, as evidenced by his statement that "[n]ot only is there something in the boldness of this accusation that belies belief, but it is simply irrational to believe that the abuse was consummated without waking the others."

Defendant's entire argument appears to be premised on disbelieving anything K.R.D. said, at trial or in her child advocacy interview. He focuses on the claims by his wife and mother-in-law that they are light sleepers and would have heard him walking around the house. However, K.R.D. specifically testified the touching typically occurred while Defendant was lying in his bed within arms-reach of K.R.D. when she was sleeping with Layla next to Defendant's side of the bed. On the one occasion where she stated Defendant touched her on the couch in the living room, she testified he had been on the couch with her and Layla when she went to sleep. Accordingly, as noted by the State in its brief, Defendant's claim that people in the house would have heard him moving around is nothing more than a red herring, given that K.R.D. always placed Defendant in a position where he would not have to move at all in order to touch her.

Defendant attacks the quality of the investigation by Captain Watkins because no physical examination was conducted to obtain physical evidence. As noted above, Captain Watkins stated he opted not to have an exam done for multiple reasons, chief amongst them being the fact that K.R.D. said the touching had not happened for weeks before she reported to Jada. Furthermore, given K.R.D.'s statements that Defendant touched her vagina with his fingers and her statement that she had never bled after Defendant touched her, we are unclear on what physical evidence Defendant believes would have been found if an exam had been performed months after the last instance of abuse.

Finally, Defendant offers no examples of "internal contradiction" such that K.R.D.'s testimony should be discredited. Marshall , 943 So.2d at 369. He simply attacks her identification of Defendant as her abuser because of her statements that she "didn't really see anything" and that she did not "really know how to explain" it was Defendant touching her with his hands. K.R.D. specifically stated in her child advocacy interview that sometimes she could see Defendant's hand moving and that on one occasion he specifically asked her if it "felt good." Furthermore, all of the instances described by K.R.D. involved circumstances where the only two people who could be touching her were Defendant and his two-year-old daughter. To suggest K.R.D. could not tell the difference between being touched by a thirty-year-old man or a two-year-old child is a suggestion that is anathema to common sense. As Defendant himself complained about a lack of physical evidence, there is no such evidence to contradict K.R.D.'s testimony.

At the end of the trial, the jury found K.R.D.'s testimony to be credible. Viewing the evidence in the light most favorable to the prosecution, as required by Jackson , 443 U.S. 307, 99 S.Ct. 2781, a rational juror could have found Defendant guilty beyond a reasonable doubt. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court improperly allowed Jada Bragg to testify to hearsay as the first person to whom K.R.D. reported her abuse. Although Defendant acknowledges that La.Code Evid. art. 801(D)(1)(d) specifically allows prior statements of a witness to be allowed into evidence as non-hearsay where the statements are consistent with the testimony of the witness who has testified at trial when the statements are of an initial report of sexual abuse, he contends the State failed to prove Jada Bragg was the first person to whom K.R.D. reported. Defendant's argument can be summarized in his conclusory statement that:

It is not merely plausible that KRD confided to someone else prior to disclosing to Jada, it is highly likely. After all, it should be recalled that KRD divulged her "secret" to Jada under almost casual questioning from the latter regarding the accuser's disinterest in staying at the Bragg home.

Initially, we note that under La.Code Crim.P. art. 841(A) :

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.

Not only did defense counsel fail to object to Jada Bragg's testimony, defense counsel, in objecting to Jada stating what K.R.D.'s mom had said, specifically acknowledged that Jada "certainly can testify about anything the alleged victim uh, told her, thank you." Furthermore, even if defense counsel had objected to Jada's testimony, Defendant's claim that no one ever asked if Jada was the first person K.R.D. told is factually incorrect, as is his assertion that the "State assiduously avoids asking K.R.D. whether she told anyone prior to Jada." During K.R.D.'s interview at the child advocacy center, Ms. Bell specifically asked her, aside from Jada and subsequently Jada's and K.R.D.'s mothers, had she ever "talked with anyone else about what all has gone on with Tyler," to which K.R.D. replied negatively. Because defense counsel failed to object at trial and Defendant's argument is premised on a factual inaccuracy, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third and final assignment of error, Defendant argues his sentence should be vacated because the trial court "erred in considering unadjudicated facts at sentencing." In essence, Defendant's argument complains that it was improper for the State to offer evidence of the underlying facts of Defendant's prior conviction for carnal knowledge of a juvenile, and the trial court erred in overruling defense counsel's objection to said underlying facts. In particular, the State suggested to the trial court that it should consider that the plea deal resulting in a carnal knowledge of a juvenile conviction was actually an aggravated rape of a three-year-old relative.

Initially, we note that while defense counsel did object to the introduction of parts of the district attorney's file in connection to his prior conviction, the basis of that objection was that counsel considered witness statements to be hearsay that deprived Defendant of his right to cross-examine the witnesses. Because Defendant has raised new grounds for objecting to the introduction of the district attorney's file connected to his prior conviction, this court may find Defendant waived his current argument under La.Code Crim.P. art. 841(A), as noted above, by not basing his objection on the grounds now argued. Nevertheless, we will allow Defendant to contest the introduction of information related to his prior conviction, the merits of which are discussed below.

Defendant's argument relies heavily on the Supreme Court's ruling in Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), wherein the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Defendant also relies on the Court's subsequent clarification in Blakely v. Washington , 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), that "[o]ur precedents make clear, however, that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. " Neither case is applicable to Defendant's claim.

In Apprendi , the defendant pled guilty to a crime with a sentencing range of five to ten years but which featured a hate crime enhancement, which could be applied based upon a finding by a preponderance of the evidence by the trial court. Following the defendant's guilty plea, the State sought enhancement and the trial court sentenced the defendant to twelve years imprisonment. The Court held that enhancement violated the defendant's rights because it allowed an increased sentencing range without consideration by the factfinder and required less than proof beyond a reasonable doubt. Likewise, Blakely involved a defendant who pled guilty to crimes wherein the allowed sentencing range was forty-nine to fifty-three months imprisonment but where the trial court sentenced the defendant to 90 months imprisonment based on the court's determination the defendant acted with deliberate cruelty, a circumstance which statutorily allowed an increased sentence.

In this case, however, neither the maximum nor minimum sentence to which Defendant was subjected was affected by the claimed error. Under La.R.S. 14:43.1, the sentencing range for each count upon which Defendant was convicted was twenty-five to ninety-nine years, with at least the first twenty-five years to be served without benefits. Nothing changed that sentencing range, as even Defendant acknowledges "the sentencing court had this entire range in which to sentence [Defendant]." Accordingly, neither Apprendi nor Blakely have any relevance to Defendant's case. Indeed, Defendant's forty-five-year concurrent sentences are on the lower end of the trial court's sentencing authority.

Finally, Defendant makes the following claim:

However, [Defendant] submits that the trial court's sentencing authority only extended to consideration of the facts adduced at trial or the inclusion of the fact of [Defendant]'s prior convictions, not the alleged facts that resulted in [Defendant]'s previous arrests or the judicial determination of what [Defendant] would have been guilty of had he elected to go to trial.

This argument ignores prior jurisprudence of this court. In State v. Boyer , 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, writ denied , 11-769 (La. 1/20/12), 78 So.3d 138, this court engaged in a lengthy recitation of factors that justified a maximum sentence on armed robbery for the defendant convicted of armed robbery with a firearm and second degree murder, including criminal charges acquired by the defendant while incarcerated and the number of times he had been disciplined while incarcerated. This court then cited State v. Howard , 43,227, p. 12 (La.App. 2 Cir. 6/11/08), 987 So.2d 330, 338, writ denied , 08-1608 (La. 4/3/09), 6 So.3d 766 :

In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Russell , 40,526 (La.App. 2d Cir. 1/27/05), 920 So.2d 866, writ denied , 2006-0478 (La. 9/29/06), 937 So.2d 851 ; State v. Jackson , 612 So.2d 993 (La.App. 2d Cir. 1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles , 94-0217 (La. 6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Estes , 42,093 (La.App. 2d Cir. 5/9/07), 956 So.2d 779. Factors to be considered may include jail disciplinary records. State v. Russell , supra.

Defendant provides no jurisprudential or statutory support for his claim that it was improper for the trial court to consider the circumstances leading to his prior conviction before sentencing. Likewise, Defendant provides no support for his conclusion that "As the [trial c]ourt made no specific findings that the submission of police reports and victim statements were not part of the [c]ourt's consideration at sentencing, this [c]ourt must construe the error in [Defendant]'s favor and vacate [Defendant]'s sentence." In light of this court's ruling in Boyer , Defendant's argument lacks merit.

DECREE

Defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED .

      Pursuant to La.R.S. 46:1844(W), the victim will be referred to by her initials throughout given that she is both a juvenile and the victim of a sex offense.