The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
07-267
STATE OF LOUISIANA
VERSUS
SAMUEL DELANEY
**********
APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR04-3760
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE
**********
ELIZABETH A. PICKETT
JUDGE
**********
Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.
AFFIRMED IN PART; REVERSED IN PART.
M. Michele Fournet
Attorney at Law
715 St. Ferdinand Street
Baton Rouge, LA 70802
Counsel for Defendant/Appellant:
Samuel Delaney
Douglas L. Hebert Jr.
District Attorney - 33rd J.D.C.
Joe Green, ADA, 33rd J.D.C.
Sherron Ashworth, 33rd J.D.C.
P. O. Drawer 839
Oberlin, LA 70655
Counsel for Appellee:
State of Louisiana
PICKETT, Judge.
On August 31, 2004, Samuel Delaney was charged by the grand jury of Allen
Parish with two counts of aggravated rape, violations of La.R.S. 14:42, two counts
of indecent behavior with a juvenile, violations of La.R.S. 14:81, and two counts of
molestation of a juvenile, violations of La.R.S. 14:81.2. Trial commenced on August
21, 2006, and the defendant was found guilty as charged on all counts by a jury on
August 25, 2006. The defendant was sentenced on December 8, 2006, to two terms
of life imprisonment without the benefit of parole, probation or suspension of
sentence on the two convictions for aggravated rape, ten years imprisonment at hard
labor on the two convictions for molestation of a juvenile, and seven years
imprisonment at hard labor for the two convictions for indecent behavior with a
juvenile. All of the sentences were ordered to be served concurrently.
The defendant did not file a motion to reconsider the sentence. However, on
December 5, 2006, the defendant filed a “Motion for New Trial and Incorporated
Memorandum” and a “Motion for Post Verdict Judgment of Acquittal and
Incorporated Memorandum.” Both motions were heard prior to sentencing on
December 8, 2006, and were denied in open court.
The defendant has perfected a timely appeal, alleging six assignments of error:
1. The trial court erred in refusing to allow the defense to present
evidence of two instances of prior sexual assault by third parties on one
of the alleged victims in this case.
2. The trial court erred in denying the motion for mistrial and
failing to give an admonition based on a witness’s reference to a
purported unrelated offense.
3. The trial court erred in refusing to quash the indictment for
duplicity.
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4. The trial court erred in allowing Dr. John Simoneaux to testify
as to the credibility of the complaining minors.
5. The trial court erred in allowing introduction of prior,
purportedly consistent, statements by the alleged victims in the form of
videotaped statements.
6. The trial court erred in denying the Motion for Post Verdict
Judgment of Acquittal.
FACTS:
The defendant lived with T.F. in his home in Allen Parish. T.F.’s youngest
daughter, K.M., who initially lived with her father and visited her mother on the
weekends, moved into the house a few months prior to the defendant being arrested
for the offenses. T.F.’s oldest daughter, H.F., lived with her father, but visited her
mother on the weekends. Between the months of August 2003 and February 2004,
the defendant, individually, forced the two minor victims to have oral sex with him.
He attempted to penetrate their vaginas with his penis and with a dildo. The
defendant walked around the house with his penis exposed to one of the victims and
made each of them watch a pornographic movie. He touched and rubbed their
vaginas while they were in bed and made them masturbate him using hand lotion or
Vaseline as a lubricant.
ERRORS PATENT :
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this
court for errors patent on the face of the record. After reviewing the record, we find
there are no errors patent.
ASSIGNMENT OF ERROR NUMBER 6:
For his sixth assignment of error, the defendant asserts that the trial court
should have granted his “Motion for Post Verdict Judgment of Acquittal” for the
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reason that the evidence was insufficient to sustain the convictions of aggravated
rape, molestation of a juvenile, and indecent behavior with a juvenile. In his motion
and in brief to this court, the defendant argues that “[t]his is a case involving a sole
issue of the credibility of the complaining alleged victims. There was no
corroboration of their testimony from medical experts or otherwise.”
We will address the defendant’s sixth assignment of error first for the reason
that should the evidence be insufficient to sustain the convictions, the defendant
would be entitled to an acquittal and the remaining assignments of error would be
moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970 (1981).
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.
T.F., the mother of the two victims, testified at trial. She had been living with
the defendant since March 2002. At the time she moved in with him, she did not have
custody of her children, a son and daughter by R.M., Sr., and a daughter by B.L. The
youngest daughter, K.M., and her brother, R.M., visited on the weekends. The oldest
daughter, H.F., at first visited during the day once a week, then in August 2003,
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began having weekend visitation. During this same time period, T.F. received
custody of the K.M. and R.M., and they began to live full-time in the defendant’s
house.
T.F. stated that there had been an “R” rated movie in the house. She said that
there were four movies on one tape, three kids movies, then a movie titled “Scoring.”
She said it contained only women’s bare breasts. She said she did not want her son
to see it so she taped over the movie.
In February 2004, H.F.’s father called T.F. and asked her to come over
immediately. She went to his house with K.M. and R.M., and H.F. told her mother
about the defendant’s sexual abuse. They talked to H.F. by herself, then called K.M.
into the room and questioned her. At this time, K.M. told her mother about what the
defendant was doing to her. T.F. stated that later, after she got home, she questioned
K.M. again and K.M. “told me that it wasn’t true, that Sam wasn’t doing anything and
that [H.] was - I don’t know - she said that [H.] had told her to do it.” T.F. stated that
a few weeks later, R.M. told her she had lied because she was jealous of the attention
the defendant was giving to her brother. T.F. said that H.F.’s father called Children’s
Protection Services, and a woman came out to interview her, the defendant, R.M., and
K.M. Because K.M. recanted the allegations, the investigation did not go further and
T.F. continued to live with the defendant. However, H.F. never went back for
visitation.
H.F.’s father, B.L., testified. Accordingly to B.L., his daughter first told her
stepmother about the sexual abuse. He stated that he reported the offenses to the
sheriff’s department, but because he lived in one parish and the offenses took place
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in another parish, it was four or five months before anyone took any action. Finally,
he was contacted by the Children’s Protection Services.
Children’s Advocacy Program interviewed the two victims regarding the
allegation of the offenses committed against them by the defendant. The tapes were
submitted at trial as State’s Exhibits 5 and 7.
At the time of the interview, K.M. was living again with her father. She was
seven years old. She told the interviewer she was happy to be living with her father
because there nothing bad could happen to her. She called genital areas “wrong
spots” and said that Mr. Sam tried to stick his wrong spot into her wrong spot. He
made her watch “nasty” movies of men and women who were naked. He kept the
movie on top of the kitchen hutch and made her watch it repeatedly. He made her
suck his wrong spot or rub it with her hands using a lotion or Vaseline as a lubricant.
He went into her bedroom at times when her mother was sleeping and got into bed
with her. He sometimes would kneel beside the bed and put his mouth on her wrong
spot. She said that when he tried to penetrate her, it hurt. She told the interviewer
that sometimes he would pee a “slimy” stuff from his wrong spot and that it tasted
bad.
The defendant had a shed behind the house called the “cock house” where he
kept his fighting roasters. He would take K.M. to the cock house and, after sitting her
in a chair, would kneel in front of the chair and rub her wrong spot with his wrong
spot. K.M. said that he told her if she told anyone, he would kill her and her sister,
H.F. He told her this more than once. She said that she did not tell for two reasons:
one, that she believed he would kill her and her sister, and two, that she did not think
5
anyone would believe her, and her mother would be kicked out of the house. She
stated that even after the allegations were made, the abuse did not stop.
At trial, K.M.’s testimony was consistent with what she stated during the taped
interview. On cross-examination, she admitted that after her initial allegations she
told her mother and a social worker the allegations were not true, that her sister had
told her to lie. She explained that later when she was confronted by her mother and
the defendant, she told them the allegations were not true because she was scared of
the defendant. Her mother then told her to tell the social worker that the allegations
were not true. This admission was consistent with what she had told the interviewer
from the Children’s Advocacy Program in July 2004.
Tom LaHaye, a physician who specialized in obstetrics and gynecology,
testified that he examined K.M. in July 2004. He found no external evidence of
sexual abuse. He stated that the victim’s hymen was intact, and there was no
evidence of fondling.
R.M., K.M.’s brother and H.F.’s half-brother, testified that on one occasion he
saw the defendant take K.M. out to the cock house, and when he asked to go with
them, the defendant told him to go back to the house. Otherwise, he said he was not
aware of any occurrence between the defendant and his two sisters.
H.F. was interviewed by the Children’s Advocacy Program on August 5, 2004.
She was ten at the time. She stated the abuse started sometime before Christmas
2003, when she started spending the weekends with her mother. She did not
remember when it started, exactly how many times it happened, or when it ended.
She spoke of one incident when, after T.F. asked the defendant to blow-dry her hair
after a bath, the defendant made her kneel in front of him and suck his penis while he
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blow-dried her hair. She said he would go into her bedroom early in the morning
when her mother was still sleeping and rub her wrong spot. She said it hurt when he
rubbed her. Once, he tried to stick a “brown thing” into her wrong spot. He went into
her bedroom almost every time she spent the night. She related another incident
which took place when her mother left the house to pick up K.M. and R.M. While
she was sitting in a recliner in the living room watching TV, the defendant knelt in
front of her and began licking her wrong spot. He then lay her on the floor and, while
kneeling over her, forced her to suck his penis. She further said he would make her
masturbate him using hand lotion that he kept by his chair in the living room as a
lubricant.
H.F. said the defendant made her watch a movie of men and women sucking
each other. She said the men “humped” the women. He kept the movie in a clear
plastic box on top of the hutch in the kitchen. H.F. told the interviewer she did not
tell because she was afraid she would not be able to see her mother anymore.
H.F.’s trial testimony was consistent with the information given in the taped
interview. She further testified that the defendant ejaculated in her mouth. However,
on cross-examination, she admitted that, during the taped interview, she had denied
he ejaculated in her mouth.
John C. Simoneaux, a forensic psychologist, who specialized in child sexual
abuse, conducted a psychological evaluation of H.F. and K.M. He testified that the
victims’ interviews were highly consistent with valid reports of sexual abuse. Doctor
Simoneaux’s testimony is discussed more at length below.
Jared Dobson, a trooper with the Louisiana State Police, Bureau of
Investigations, was the lead investigator in this matter. He testified that he seized a
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videotape he found which contained a movie showing full-frontal nudity of men and
women simulating sex acts. The title of the movie was “Scoring.” Tracy Morgan,
a sergeant with the Louisiana State Police, testified that he located two jars of
Vaseline in the cock house, one was a clear jell and one was a reddish colored jell.
He also said he was present when a bottle of hand lotion was located next to a recliner
in the living room.
The defendant testified. He was fifty years old at the time of trial. He was an
electrician. He had been married for twenty-three years prior to living with T.F. and
had three adult children. He categorically denied every allegation. He stated that he
did not have much to do with H.F. because she lied and stole from him constantly.
He stated H.F. hated him because he had helped T.F. in her bid to regain custody of
K.M. and R.M., but not her. He explained he had Vaseline in the cock house because
he used it as a base in which to mix medicine to apply to the roosters. He did not
permit the children to go into the cock house because he was fearful the roosters
would attack them. He had no knowledge of how the movie “Scoring” came into his
possession, other than it could have been included in a box full of used tapes he
purchased at a yard sale.
The defendant’s daughter, Lisa Delaney Swarthout, testified her father was a
good man, and had never touched her inappropriately. Connie Thompson, a financial
advisor who had helped the defendant with financing, testified she had known him
all her life and considered him to be an honest and upright person. Buddy Kelly, a
contractor who had hired the defendant previously, testified as to his good reputation
in the community, as did Shirley Fontenot, a dispatcher for the Oakdale Police
Department.
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As noted above, the defendant asserts the victims’ testimonies were
unsupported by physical evidence or corroborating testimony and was “so incredible
that no rational juror would believe it.”
In Louisiana jurisprudence, it has been consistently held:
In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual finding. In the case
of sexual offenses, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even where the State does not
introduce medical, scientific or physical evidence to prove the
commission of the offense.
State v. Roca, 03-1076, pp.11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ
denied, 04-583 (La. 7/2/04), 877 So.2d 143 (citation omitted) .
The victims’ testimonies were consistent with each other’s description of the
defendant’s behavior. Their testimonies were consistent with their statements made
on the videotapes. According to the testimony of the two victims, their mothers and
B.L., neither victim knew the other was being subjected to same sexual abuses by the
defendant. They both described the movie and where he usually hid the movie.
Trooper Dobson testified he located the pornographic tape. They both discussed the
lubricants they had to use to masturbate the defendant and the location of the
lubricants. The police officers testified they located the lubricants where the victims
stated the lubricants were kept. There were no internal contradictions or
irreconcilable conflicts with physical evidence.
Aggravated rape:
In order to convict the defendant of aggravated rape, the state had to show that
the victims were below the age of thirteen at the time of the occurrence, and that the
9
defendant had anal, oral, or vaginal sexual intercourse with the victims. La.R.S.
14:42. Both victims testified they were below the age of thirteen at the time of the
sexual acts. Both victims testified the defendant attempted to insert his penis into
their vaginas. Any penetration, however slight, is sufficient. La.R.S. 14:41(B).
Moreover, both victims testified he had oral sexual intercourse with them. The
evidence was sufficient to convict the defendant of these offenses beyond a
reasonable doubt.
Molestation of a juvenile:
In order to convict the defendant of molestation of a juvenile, the state had to
show(1) that he was over the age of seventeen; (2) that he committed a lewd or
lascivious act upon the person or in the presence of a child under the age of
seventeen; (3) that he was more than two years older than the victim; (4) that he had
the specific intent to arouse or gratify either the child’s sexual desire or his own
sexual desire; and (5) that he committed the lewd or lascivious act by use of force,
violence, duress, menace, psychological intimidation, threat of great bodily harm, or
by the use of influence by virtue of a position of control or supervision over the
juvenile. La.R.S. 14:81.2; State v. Ellis, 38,740 (La.App. 2 Cir. 8/18/04), 880 So.2d
214.
Specific intent is a state of mind and can be inferred from the accused’s actions.
State v. Onstead, 03-1413 (La.App. 5 Cir. 5/26/04), 875 So.2d 908. A lewd and
lascivious act is defined as “an act . . . which is lustful, obscene, indecent, tending to
deprave the morals in respect to sexual relations, and relating to sexual impurity or
incontinence carried on in a wanton manner.” State v. Interiano, 03-1760, p. 7 (La.
2/13/04), 868 So.2d 9, 15, quoting State v. Holstead, 354 So.2d 493, 498 (La.1977).
10
Further, the supreme court in Interiano stated that lewd and lascivious acts
“encompasses not only the physical touching of the victim in an indecent manner, but
also ‘indecent sexual displays in the presence of children under the age of
seventeen.’” Id. at 15.
In the case of K.M., she stated she did not tell because the defendant threatened
to kill her and her sister if she told. She lived in his house and was afraid that if she
resisted or told on him, he would kick her mother out of the house. Moreover, he
would take her out to the cock house, which was his exclusive domain. On the
videotape and at trial, she stated that he made her rub his penis using Vaseline as a
lubricant. All the elements of molestation of a juvenile were shown and a jury could
have found him guilty beyond a reasonable doubt.
H.F. stated on the videotape the defendant told her it was their little secret.
She stated she was afraid to tell about the sexual abuse because she did not want to
stop seeing her mother. In State v. Mack, 514 So.2d 567 (La.App. 4 Cir. 1987), the
fourth circuit affirmed the conviction for molestation of a juvenile where the victim
testified she was intimidated into acquiescing to the sexual activity because she was
afraid she was going to be stranded in a strange place on a cold night without a way
home. In this case, we find there was sufficient evidence for the jury to determine
beyond a reasonable doubt that the defendant was guilty of the offense of molestation
of a juvenile by use of psychological intimidation to get H.F. to acquiesce to his
demands.
Indecent behavior with a juvenile:
In order to convict the defendant of indecent behavior with a juvenile the state
had to prove (1) he committed any lewd or lascivious act; (2)the act was upon the
11
person or in the presence of any child under the age of 17; (3) that he was over the age
of seventeen and more than two years older than the victim; and (4) that he had the
intention of arousing or gratifying the sexual desires of either person. La.R.S.
14:81(A); Ellis, 880 So.2d 214.
We find noplace in the record where the state discussed at trial what conduct of
the defendant constituted the offense of indecent behavior with a juvenile. However,
in brief to this court (in response to an allegation of double jeopardy discussed below),
the state argues the indecent behavior was that “the defendant forced the two victims
to watch pornographic movies with him.” After reviewing the facts we find the state
did not meet its burden of proving the defendant committed the offense of indecent
behavior.
In State v. Gaspard, 02-1040 (La.App. 3 Cir. 3/5/03), 841 So.2d 1021, this court
held that without more, watching a pornographic movie with a juvenile was not “lewd
and lascivious.” In Gaspard, a father, during weekend visitations with his son, forced
him to watch several pornographic movies. He also supplied his son with printed
material depicting naked women. He would even pack magazines of naked women
in the boy’s suitcase when he went home from his weekend visitations. However,
“[n]othing in the record indicates Defendant touched, or tried to touch, the boy or
himself. There is no suggestion of nudity or physical exposure of any kind by either
of them.” Id. at 1024. The only act consisted of Gaspard showing the movies to his
son.
This court held:
In this case, we find the conduct at issue does not even qualify as an
“act” contemplated by the statute. However, assuming it was such an
“act,” Defendant’s watching or showing the videos to his son was clearly
not “lewd and lascivious” under Louviere [State v. Louviere, 602 So.2d
12
1042 (La.App. 4 Cir.1992), writ denied, 610 So.2d 796 (La.1993)].
Further, as required by La.R.S. 14:81, there was no evidence Defendant
did anything “upon the person” of V.G. and Defendant did not participate
in any lewd acts “in the presence of” V.G. Arguably, the actions depicted
on the videos were “lewd and lascivious,” but Defendant was not a
participant in those actions.
Considering the discussion and the result in Louviere, it seems
clear that the conduct at issue falls short of the conduct deemed criminal
in La.R.S. 14:81. If “french kissing” does not qualify as attempted
indecent behavior with a juvenile, we cannot say watching
sexually-explicit videos qualifies. Regardless of how distasteful and
morally debased Defendant’s conduct was, the statute he was charged
with violating required certain elements which are not present in this
case. While the criminal code provides other offenses which may fit the
acts of the Defendant herein, we are unable to speculate on those and
must find him not guilty of the crime charged.
Id. at 1026. See also State v. Peloguin, 04-667 (La.App. 3 Cir. 11/17/04), 888 So.2d
393, writ denied, 04-3170 (La. 4/8/05), 898 So.2d 1280, wherein this court did not
find a lewd and lascivious act when Peloguin asked the fourteen-year-old if she
wanted to see his penis. The victim answered no and walked away. This court found
no overt act committed upon the victim.
In the present case, neither victim testified at trial or on the videotapes that there
was any touching, or suggestion of touching, or nudity while the movie was being
watched. In fact, in her taped interview, K.M. was specifically asked if there was any
sexual activity which occurred during the watching the movie, and she answered that
they just watched the movie.
As noted, the state did not specify at trial what conduct constituted indecent
behavior. Therefore, for the reasons discussed above, and for the reasons raised below
in the defendant’s assignment of error number three which raises issues of double
jeopardy, we find that the state failed to prove the element of “lewd and lascivious”
acts necessary to convict him of indecent behavior with a juvenile under the particular
13
factual scenario as set forth by the state in its brief in response to this appeal.
Accordingly, this court hereby vacates the convictions of indecent behavior with a
juvenile, and judgments of acquittal, are rendered as to these two counts. The
sentences imposed for the two counts of indecent behavior with a juvenile are vacated.
ASSIGNMENT OF ERROR NUMBER 1:
The defendant asserts the trial court erred when it denied his “In Camera Motion
for Introduction of Evidence of Prior Act of Sexual Abuse Against Victim Pursuant
to La.C.E. Article 412 (Rape Shield) and Assertion of Unconstitutionality of Article
412.” The defendant’s motion was filed on April 15, 2005. A hearing was held on
April 26, 2005, and the motion was denied with written reasons.
In his motion, the defendant asserted H.F. was sexually assaulted by two
different men who have been convicted of those offenses. He argued that the evidence
was offered to show the following:
1) [A]s probable alternate source for the victim’s account of the incidents
alleged to have been committed by defendant, 2) to show the jury that the
victim had been educated as to this type of sexual behavior, thereby
offering an explanation as to a source from which the victim could have
been educated as to this type of activity.
The trial court denied the motion and stated:
Defendant asserts that the jury should be allowed to hear evidence
of prior incidents of sexual molestation of the minor victim in this case.
Further, defendant asserts that this evidence is critical to his defense in
that it establishes a possible alternative source for the victim’s familiarity
with and/or knowledge of sexual information related to the acts allegedly
committed by the defendant. Defendant insists that without this
information being admitted into evidence, the jury would know of no
other source in which a child of this age could have learned or been
exposed to this type of information, and the jury could only believe that
the child was subjected to such behavior by defendant.
For reasons fully explained in State v. Loyden, 899 So.2d 166
(La.App. 3rd Cir. 2005), the Court finds that pursuant to Louisiana Code
14
of Evidence Article 412, evidence of the victim’s prior molestation is not
admissible in this matter.
The defendant argues in brief to this court that the trial court effectively denied
him his right to present a defense as guaranteed him by the constitution. In State v.
Loyden, 04-1558, p. 10 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 174, this court quoted
State v. Zeringue, 03-697, pp. 13-14 (La.App. 5 Cir. 11/25/03), 862 So.2d 186, 195,
writ denied, 03-3523 (La. 4/23/04), 870 So.2d 298, as follows:
The Sixth Amendment to the United States Constitution and
Article I, § 16 of the Louisiana Constitution guarantee an accused in a
criminal prosecution the right to be confronted with the witnesses against
him. The primary purpose behind this right is to secure for the defendant
the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94
S.Ct. 1105, 39 L.Ed.2d 347 (1974). Cross-examination is the principal
means by which the believability of a witness and the truth of his
testimony are tested. State v. Hillard, 398 So.2d 1057, 1059 (La.1981).
An accused also has a constitutional right to present a defense.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d
1019 (1967). As a general rule, a party may attack the credibility of a
witness by examining him or her concerning any matter having a
reasonable tendency to disprove the truthfulness of his or her testimony.
LSA-C.E. art. 607(C). The right of an accused sex offender to present a
defense is, however, balanced against the victim’s interests under
LSA-C.E. art. 412, which is meant to protect the victim of sexual assault
from having her sexual history made public.
See also State v. Everidge, 96-2665 (La. 12/2/97), 702 So.2d 680.
Louisiana Code of Evidence Article 412 provides, in relevant part, as follows:
A. Opinion and reputation evidence. When an accused is charged
with a crime involving sexually assaultive behavior, reputation or
opinion evidence of the past sexual behavior of the victim is not
admissible.
B. Other evidence; exceptions. When an accused is charged with
a crime involving sexually assaultive behavior, evidence of specific
instances of the victim’s past sexual behavior is also not admissible
except for:
(1) Evidence of past sexual behavior with persons other than the
accused, upon the issue of whether or not the accused was the source of
15
semen or injury, provided that such evidence is limited to a period not to
exceed seventy-two hours prior to the time of the offense, and further
provided that the jury be instructed at the time and in its final charge
regarding the limited purpose for which the evidence is admitted; or
(2) Evidence of past sexual behavior with the accused offered by
the accused upon the issue of whether or not the victim consented to the
sexually assaultive behavior.
The defendant argues “that the proposed evidence of the prior assaults was not
character evidence since the previous assaults involved no voluntary conduct on the
part of H.F. and that Article 412 did not seek to prohibit ‘non-character’ evidence
regarding the victim.”
However, in this same factual situation wherein the victims had been subjected
to prior sexual offenses, this court and other jurisdictions have consistently held that
the rape shield statute’s protection applies regardless whether it was non-character
evidence the accused sought to introduce, unless one of the above-mentioned
exceptions apply, or unless the accused’s right to present a defense outweighs the
victim’s right to not have prior sexual activity revealed.
In State v. Blue, 591 So.2d 1173, (La.App. 1 Cir. 1991), writ granted in part,
[sentence set aside and case remanded for compliance with La.Code Crim.P. art.
894.1] 591 So.2d 1172 (La.1992) Blue argued that the evidence of a prior molestation
was offered to show the eleven-year-old victim’s knowledge of what constituted
sexual acts. The first circuit noted that “[i]n this case, the victim was not physically
injured, and no semen or other such physical evidence was recovered. . . .
Furthermore, consent was not an issue. . . .” Id. at 1177. The first circuit concluded,
therefore, that the evidence of a prior sexual assault was irrelevant.
In State v. Billings, 93-1542 (La.App. 3 Cir. 5/4/94), 640 So.2d 500, writ
denied, 94-1437 (La. 10/7/94), 644 So.2d 631, the accused sought to introduce
16
medical records showing that the “young victim already had inappropriate knowledge
of certain sexual activities.” Id. at 502. This court upheld the trial court’s ruling that
evidence of non-consensual sex between another man and the victim prior to the time
in which it was alleged the accused had non-consensual sex with the victim was not
relevant. See also State v. Davis, 95-801 (La.App. 3 Cir. 12/6/95), 664 So.2d 821;
Zeringue, 862 So.2d 186, and State v. Smith, 04-1442, 04-1470 (La.App. 3 Cir.
2/2/05), 894 So.2d 564.
The defendant argues that cases such as this one pose “special problems. This
is because any individual accused of any type of sexual assault of a minor faces a
special challenge absent in cases involving adult complaints: the common assumption
that a child has no way of knowing the mechanics of sexual activity, absent the guilt
of the accused on the charges at issue at trial.” The defendant’s argument is strikingly
similar to the argument presented to the first circuit in State v. Michel, 93-789, pp. 4-5
(La.App. 1 Cir. 3/11/94), 633 So.2d 941, 943:
In his brief to this Court, the defendant states:
The jury should have been allowed to hear evidence of a
possible sexual molestation of this minor which occurred in
1988.... This evidence was critical in that it establishes a
possible alternative source for the victim’s account of the
incident. If the child had, on a previous occasion, been
sexually molested and had been educated as to this type of
sexual behavior through this prior act, that fact may explain
her vivid account of the incident that she gave at trial.
Without this information being admitted into evidence, the
jury would know of no other source in which a child of this
age could have learned or been exposed to this type of
information. The jury could only believe that the child was
subjected to such behavior by this defendant. Had the jury
been able to hear of prior acts of sexual molestation, they
would have been aware of an alternative source of the
victim’s testimony which significantly weakens the state’s
case . . . .
17
The evidence is not being offered nor would the jury believe
that the evidence is being offered to attack the child’s
character. Any prior sexual acts committed on this
youngster were done involuntarily on the part of the child.
Therefore, the jury would not see the fact that she has been
molested on a prior occasion as a personal attack on her.
She was only a victim. Indeed, evidence regarding prior
molestations of this minor would make her a more
sympathetic witness in the eyes of the jury....
Article 412 is intended to prevent or “shield” sex
crime victims from having irrelevant, prejudicial, and
embarrassing information about the victim’s sexual activity
brought out in trial. The article, by its clear terms, was not
intended to exclude from evidence involuntary assaults
previously perpetrated on the victim....
Involuntary sexual attacks, assaults, or forced acts
committed against the victim would not and could not
impugn someone’s character. Since such acts are
“involuntary,” the fact that they occurred in no way reflect
[sic] on the “character” of the victim. Given this fact,
Article 412 was not intended to exclude prior involuntary
sexual assaults committed upon the victim. (Defendant’s
brief, pp. 10-13).
The first circuit found no merit to Michel’s argument for the following reasons:
The defendant admits that this issue was raised and rejected in
State v. Blue, 591 So.2d 1173 (La.App. 1st Cir.1991), writ granted in
part and denied in part, 591 So.2d 1172 (La.1992). However, he argues
that the decision in State v. Blue did not consider the intent of Article
412, which is primarily designed to protect victims of sexual abuse from
unwarranted investigations of their past sexual behavior and improper
attacks upon their character and reputation. We have carefully considered
the defendant’s interesting argument regarding the applicability and
intent of Article 412. We also have considered the defendant’s
constitutional right to present a defense. In this case, had the victim’s
testimony been the only evidence identifying him as the perpetrator, the
defendant’s constitutional right to present a defense might have
overcome a rigid application of Article 412 preventing any exploration
of specific instances of the victim’s past sexual behavior. However, an
examination of the facts of the instant offense confirms our decision that
Article 412 was correctly applied in this case to prevent any exploration
of a possible sexual molestation of the victim in 1988. The defendant
was discovered in the victim’s bed. Both of them were naked from the
waist down. When ordered out of her bed by the deputies, the defendant
was observed to have a liquid substance dripping from his erect penis.
18
Considering these facts, we find that the instant case is not
distinguishable from the situation presented in State v. Blue and,
therefore, we conclude that the trial court correctly prevented any
exploration of an alleged prior act of sexual abuse of the victim.
Id. at 943-44.
While there was no corroborating eyewitness evidence, as in the case of Michel,
where the accused and victim were half-clothed and in bed when they were
discovered, in the current case there were corroborating facts given by H.F. which
were substantiated by the investigating officers. The victim testified regarding the
pornographic movie she was shown by the defendant. She further described the hand
lotion, which was located where she said it could be found. Furthermore, the
possession of the pornographic movie and its location were corroborated by K.M.,
who was also forced to watch the movie at different times than her sister. Finally,
there was H.F.’s sister, who alleged identical sexual abuse during the same time
period, under the same circumstances, and who had not been exposed to prior sexual
assault as H.F.
As in Blue, in the present case there were no issues of who deposited the semen
or caused the injuries, nor was there an issue of consent. Therefore, the exceptions to
the rape shield statute did not apply for those reasons. The trial court did not err when
it denied the defendant’s motion and ruled that H.F.’s prior sexual assaults were
protected information pursuant to La.Code Evid. art. 412.
In the defendant’s “In Camera Motion for Introduction of Evidence of Prior Act
of Sexual Abuse Against Victim Pursuant to La.C.E. Article 412 (Rape Shield) and
Assertion of Unconstitutionality of Article 412,” he asserted, “defendant urges the
unconstitutionality of Louisiana Code of Evidence Article 412, in that the legislative
intent of said Article was not intended to exclude from evidence involuntary sexual
19
assaults previously perpetrated on a victim.” The defendant further argued that if the
article was so “interpreted to include involuntary sexual assault, Louisiana Code of
Evidence Article 412 prevents and/or prohibits defendant from presenting a defense,
a constitutional right guaranteed by the United States Constitution, Fifth, Sixth and
Fourteenth Amendments and Louisiana Constitution, Article I, Section 16.”
A hearing on the defendant’s motion was held on April 26, 2005. The motion
was taken under advisement. In its ruling, the trial court denied the motion pursuant
to Article 412 and did not address the question of constitutionality. In his brief to this
court, the defendant does not directly challenge the constitutionality of the statute, but
discusses only whether application of the statute in this case impinges on his
constitutional right to present a defense.
It is well established that statutes are presumed to be valid, and the
constitutionality of a statute should be upheld whenever possible. State
v. Griffin, 495 So.2d 1306, 1308 (La.1986) (citations omitted). Because
a state statute is presumed constitutional, the party challenging the statute
bears the burden of proving its unconstitutionality. The attack will fail
if the court determines that a reasonable relationship between the law and
the promotion or protection of a public good, such as health, safety or
welfare exists. Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515
(La.1983).
State v. Brenan, 99-2291, p. 3 (La. 5/16/00), 772 So.2d 64, 67.
In Billings, and in State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d
1036, writs denied, 99-3477 (La. 6/30/00), 765 So.2d 1062 and 00-150 (La. 6/30/00),
765 So.2d 1066 , this court and the fifth circuit discussed the constitutionality of the
notice requirement for invoking the exception provision of Article 412. In Hotoph,
the fifth circuit noted:
In Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d
205 (1991), the United States Supreme Court upheld a similar notice and
hearing requirement, finding it constitutional and noting that, to the
extent that a rape shield statute operates to prevent a criminal
20
defendant from presenting relevant evidence, the defendant’s ability
to confront adverse witnesses and present a defense is diminished,
but this does not necessarily render the statute unconstitutional. 500
U.S. at 148, 111 S.Ct. at 1746. This rationale was followed by the Third
Circuit in State v. Billings, 93-1542 (La.App. 3rd Cir.5/4/94), 640 So.2d
500, writ denied, 94-1437 (La.10/7/94), 644 So.2d 631.
Id. at 1047 (emphasis added).
The defendant did not meet his burden of rebutting the presumption of the
constitutionality of Article 412. Accordingly, there is no merit to this assignment of
error.
ASSIGNMENT OF ERROR NUMBER 2:
The defendant argues that the trial court erred when it denied his motion for a
new trial. The defendant filed a “Motion for New Trial and Incorporated
Memorandum” on December 5, 2006. The defendant asserted several trial errors
which he argued warranted a new trial. Specifically, for this assignment of error, the
defendant complains of an inadvertent statement made during trial by the victims’
mother which could be construed as impermissible other crimes evidence. After being
asked why she continued to live with the defendant after the allegations of sexual
abuse surfaced, the witness stated:
A. After he was arrested the first time, [K.] would keep on
changing her story and I wasn’t sure whether or not it was true. He had
bonded out the first time. And when he had bonded out, he had told me
that as long as I stuck by his side, my kids would be safe. So I made it
look like I believed him instead of my children so I could make sure that
he didn’t put a hit on them like he did to their daddies.
MR. GRAVEL: Objection. May we approach. (Discussion had at
the bench was out of the hearing of the jury.) Reference to other crimes.
I move for a mistrial.
MR. GREEN: I didn’t ask the question.
21
MR. GRAVEL: Judge, for her to blurt out and to say that he put a
hit on someone, when she had never said it before. She’s in this
courtroom today. That’s so prejudicial.
THE COURT: I’ll tell the jury that the last part was non-
responsive and I’ll order it to be stricken. Your motion for mistrial is
denied. The last part of her testimony concerning what Mr. Delaney did
concerning her ex-husband is stricken from the record and not to be
considered. It was non-responsive to what the District Attorney asked.
The defendant further argued that the trial court erred when it did not properly
admonish the jury regarding the statement.
The defendant’s motion for a new trial was heard on December 8, 2006, at
which time the motion was denied. However, the defendant requested that the trial
court reinstate the stricken testimony for the purpose of appeal and the trial court
complied.
Generally, evidence of other crimes, wrongs, or bad acts is not admissible at
trial. La.Code Evid. art. 404(B). Moreover, even if the evidence may be relevant, it
may be excluded if the probative value of the offense is substantially outweighed by
the prejudicial value or if it is misleading to the jury. La.Code Evid. art. 403.
Louisiana Code of Criminal Procedure Article 771, in relevant part, provides:
In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark or
comment made during the trial, or in argument within the hearing of the
jury, when the remark is irrelevant or immaterial and of such a nature that
it might create prejudice against the defendant, or the state, in the mind
of the jury:
....
(2) When the remark or comment is made by a witness or person
other than the judge, district attorney, or a court official, regardless of
whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a
mistrial if it is satisfied that an admonition is not sufficient to assure the
defendant a fair trial.
22
In State v. Willis, 05-218 pp. 32-33 (La.App. 3 Cir. 11/2/05), 915 So.2d 365,
389, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, --- U.S. ----, 127
S.Ct. 668 (2006) while discussing other crimes evidence, this court stated:
[t]he erroneous admission of other crimes evidence is subject to harmless
error analysis under the standard set out in Chapman v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See State v. Gibson, 391
So.2d 421 (La.1980). Under Chapman, an appellate court must decide
“whether there is a reasonable possibility that the evidence complained
of might have contributed to the conviction,” and “the court must be able
to declare a belief that [the error] was harmless beyond a reasonable
doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824.
The Chapman standard was later refined in Sullivan v. Louisiana,
508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), as follows:
“Consistent with the jury-trial guarantee, the question
[Chapman ] instructs the reviewing court to consider is not
what effect the constitutional error might generally be
expected to have upon a reasonable jury, but rather what
effect it had upon the guilty verdict in the case at hand....
The inquiry, in other words, is not whether, in a trial that
occurred without the error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.”
(emphasis in original).
State v. Bell, 99-3278, pp. 5-6 (La.12/8/00), 776 So.2d 418, 421-22.
Despite the defendant’s assertion otherwise, as noted above, the record indicates
that the trial court did advise the jury that the remark made by the witness was to be
disregarded. Moreover, the defendant did not request that the jury be so admonished.
Further, on cross-examination, the defendant questioned the witness regarding her
statement, thereby bringing the allegation again to the jury’s attention. Finally,
regardless that the one initial comment may have been inadmissible, the error is
harmless as suggested in Willis. An error is harmless if the guilty verdict rendered in
the case is surely unattributable to the error. As noted in assignment of error number
six, discussed above, the evidence submitted was such that even without the erroneous
23
statement, the victims’ testimonies and other corroborating facts were sufficient to
sustain the verdicts.
Accordingly, the trial court did not err when it denied the defendant’s motion
for a new trial based on the erroneous admission of other bad acts. There is no merit
to this assignment.
ASSIGNMENT OF ERROR NUMBER 3:
On February 24, 2005, the defendant filed a “Motion to Quash on Basis of
Duplicity.” A hearing was held on April 26, 2005, wherein the trial court denied the
defendant’s motion. In brief to the trial court, the defendant alleged that the charges
of molestation of a juvenile and indecent behavior with a juvenile were based on the
“same transaction/incident and/or circumstances; under the approach/theory relied on
by the State, Molestation of a Juvenile could not be committed without the
accompanying crime of Indecent Behavior with a Juvenile.”
As discussed above, in response to this allegation, the state asserts that the
indecent behavior involved the watching of the pornographic movie with the victims.
However, because the state failed to establish the necessary lewd and lascivious
element of indecent behavior, this court has reversed the convictions for indecent
behavior. Accordingly, this assignment of error is moot.
ASSIGNMENT OF ERROR NUMBER 4:
For his fourth assignment of error, the defendant asserts the trial court erred
when it permitted Doctor John Simoneaux, an expert in child abuse matters, to
comment on the victims’ credibility. The defendant argues that Doctor Simoneaux’s
statements impermissibly bolstered the victims’ testimonies and usurped the credibility
determination that was the province of the jury.
24
The role of an expert witness in criminal matters involving sexual abuse of
children has been well defined:
The purpose of an expert witness in a criminal case is to provide
the jurors with a basis of knowledge and background information on a
subject. The jury as the ultimate fact finder should relate background
knowledge received from the expert to the facts established by the
evidence at trial, and make a determination of the defendant’s guilt.
State v. Soler, 93-1042, p. 11 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069,
1080, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055.
La. C.E. art. 702 provides that a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify in the
form of an opinion or otherwise, if the scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue. La. C.E. art. 704 provides:
Testimony in the form of an opinion or inference other-wise
[sic] admissible is not to be excluded solely because it
embraces an ultimate issue to be decided by the trier of fact.
However, in a criminal case, an expert witness shall not
express an opinion as to the guilt or innocence of the
accused.
Expert testimony can assist a jury in understanding the significance
of a child-witness’s demeanor, inconsistent reports, delayed disclosure,
reluctance to testify, and recantation. State v. Chauvin, 02-1188
(La.5/20/03), 846 So.2d 697. See also, State v. Foret, 628 So.2d 1116
(La.1993). An expert witness can explain to the jury that a
child-witness’s seemingly abnormal behavior such as delayed reporting,
inconsistent statements, and recantation is normal for children who have
been sexually abused and can also dispel jurors inaccurate perceptions
allowing them to better assess a child-witness’s testimony. State v.
Chauvin, 846 So.2d at 702-703.
The proper presentation of the expert testimony must focus on
explaining to a jury why “superficially bizarre” reactions such as delayed
reporting, and the like take place in such cases. State v. Foret, 628 So.2d
at 1130. See also, State v. Chauvin, supra; State v. Ste. Marie, 97-0168
(La.App. 3 Cir. 4/18/01), 801 So.2d 424, 428, appeal after remand on
other grounds, 01-1253 (La.App. 3 Cir. 4/10/02), 824 So.2d 358, writ
denied, 02-1117 (La.12/19/02), 835 So.2d 1288. The expert’s opinion
testimony must explain in general the behavioral characteristics of child
abuse victims in disclosing alleged incidents without giving an opinion
directly concerning the particular victim’s credibility. State v. Foret, 628
So.2d at 1130; State v. Ste. Marie, 801 So.2d at 429.
25
If the expert’s testimony is properly limited in this fashion, then it
is of assistance to the jury in evaluating the psychological dynamics and
resulting behavior patterns of alleged victims of child sexual abuse.
State v. Foret, 628 So.2d at 1130. The expert’s testimony concerning
why victims might recant or delay reporting offered to rebut attacks on
the victim's credibility is proper, so long as the expert limits his
testimony to the general characteristics that explain delays in reporting,
recantations, and omission of details. Id. The expert cannot substitute his
estimation of the child’s credibility for that of the jury. The expert
testimony can only provide a scientific perspective for the jury to
evaluate the child’s testimony for itself. Id.
State v. Myles, 04-434, pp. 10-11 (La.App. 5 Cir. 10/12/04), 887 So.2d 118, 125.
The defendant states that “while some of Dr. Simoneaux’s testimony was within
the rule of Foret, a disturbing majority of his testimony was nothing more than a
commentary on why, in his opinion, the children were telling the truth.”
Initially, we note the defendant did not make objections to the specific
statements he claims were inadmissible under Foret. The defendant objected once at
the beginning of the doctor’s testimony when the doctor was asked if he had “an
expert opinion as to her [K.M.] psychological evaluation?”
A. You know--You know, if you’re asking me if I’m absolutely
certain if [K.] is telling the truth, I’m not. . .
MR. GRAVEL: Your Honor. . .
THE COURT: Hold up. There’s an objection. (Discussion had at
the bench was out of the hearing of the jury.)
MR. GRAVEL: I’m going to object to him testifying as to the
truthfulness. . .
MR. GREEN: I wasn’t trying to ask that question.
THE COURT: That’s sustained.
Q. Have you formed an expert opinion as to her statement--
whether or not her statement would be consistent in the dynamics of
sexual abuse that you [sic] seen?
26
A. Her statement was very consistent with what I have seen and
what I have later learned to be valid reports of sexual abuse, yes.
None of the subsequent statements to which the defendant now objects were
objected to at trial. Louisiana Code of Criminal Procedure Article 841 provides:
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 therefore.
We find no error in the trial court’s ruling regarding the question to which the
objection was made. We will not consider the subsequent statements as there were no
contemporaneous objections made, and thus these issues were not preserved for
appeal.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 5:
For his fifth assignment of error, the defendant argues that the admission of the
videotapes which contain consistent statements violated his right to a fair trial. The
defendant asserts the only purpose of the admission of the tapes was to “bolster the
veracity of the children.”
The defendant asserts in brief that he “objected far in advance to the
introduction of the first tape on the basis of bolstering.” However, he did not object
to the admission of the two videotapes at trial and therefore is precluded from raising
the issue on appeal. La.Code Crim.P. art. 841. The defendant points to the record
wherein Jolynn Doland, a social worker who works with Children’s Advocacy
Program and the person who interviewed H.F., was asked, “and what can you tell us
27
about the interview that you gave--that you had with [H.]?” The following
conversation then took place:
MR. GRAVEL: May we approach, please?
THE COURT: Yes. (Discussion had at the bench was out of the
hearing of the jury.)
MR. GRAVEL: Judge, I’m going to object. It sounds to me that
she’s getting ready to--as far as her testimony, that she’s getting ready to
vouch for the credibility because they went through this interview
process. She’s everything [sic] talked about everything else, but if she’s
giving a summation about “everything that I did, she’s credible and it’s
true” then I think that’s improper. That’s a dirty question.
THE COURT: and where are you going with that?
MR. GREEN: I was going to ask whether or not she had --
comparing this to other interviews, was there spontaneity, was there all
of the other procedures that she talked about, were the questions not
leading, was she spontaneous.
MR. GRAVEL: Right.
THE COURT: However, testifying to the truthfulness or non-
truthfulness of the child, I’m not going to allow that. (Inaudible)
foundation, the tape being videoed--the tape being admissible in court.
MR. GRAVEL: It just appeared that she was getting ready to say.
..
MR. GREEN: (Inaudible) credibility that I was getting into was if
the child was spontaneous as far as. . .
THE COURT: (Inaudible) but again, I’ll caution you not to ask
that question.
Following Ms. Doland’s testimony, the victim H.F. testified. Following her
testimony, the state published the first videotape, the interview with H.F. When asked
if there were any objections, the defendant answered, “I don’t have a problem with
that, Judge.”
28
After several more witnesses testified, and after laying a foundation for the
second videotape with a second Children’s Advocacy interviewer, the state sought to
publish the second videotape. At this point, the defendant objected to the tape being
published “for the purpose of educating her. It’s similar to asking leading questions
and suggesting the answers for her to sit and view the video and then to testify so that
Mr. Green can then come back.” Following discussion with the trial court and
defense counsel, the state agreed to put the victim on the stand before publishing the
video to the jury. Following K.M.’s testimony, the state offered publication of the
videotape. At this time, the defendant had no objections.
The defendant did not object to the publication of the videotapes on the grounds
the tapes bolstered the victims’ testimonies. As noted, an error or irregularity must be
objected to at the time of the occurrence and grounds must be stated for the objection.
Once an objection is made, an accused is limited on appeal to those grounds
articulated at trial. La.Code Crim.P. art. 841(A). State v. Dean, 00-199 (La.App. 4
Cir. 3/14/01), 789 So.2d 602, writ denied, 01-1177 (La. 3/15/02), 811 So.2d 897.
There is no merit to this assignment.
CONCLUSION
In the case of both victims, this court affirms the two convictions of aggravated
rape. In the case of both victims, this court affirms both convictions for molestation
of a juvenile. Finally, this court reverses both convictions for indecent behavior with
a juvenile. Under the factual scenario set forth by the state, the state failed to establish
the element of lewd and lascivious behavior necessary for this offense.
AFFIRMED IN PART; REVERSED IN PART.
29