Petition for Writ of Certiorari — Shannon Simpson, Petitioner v. Louisiana

Supreme Court briefJan 13, 2026

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N°.

IN THE

Supreme Court of the United States

SHANNON SIMPSON,

Petitioner,

STATE OF LOUISIANA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE STATE OF

LOUISIANA COURT OF APPEAL, FIFTH CIRCUIT

APPENDIX

SHANNON SIMPSON, N°. 753150

PRO-SE

ALLEN CORRECTIONAL CENTER

3751 LAUDERDALE WOODYARD RD.

KINDER, LA 70648

TABLE OF CONTENTS

Opinion of the Louisiana Supreme Court

(October 14, 2025).......................................................................................................... 1a

Opinion of the Louisiana Court of Appeal

Fifth Circuit

(April 16, 2025)

..................................................................................................... 2a

Supreme ©nurf of flp^fafe nf^nuisiana

STATE OF LOUISIANA

No. 2025-KO-00638

VS.

SHANNON SIMPSON

IN RE: Shannon Simpson - Applicant Defendant; Applying For Writ Of Certiorari,

Parish of Jefferson, 24th Judicial District Court Number(s) 22-2884, Court of

Appeal, Fifth Circuit, Number(s) 24-KA-250;

October 14, 2025

Writ application denied.

PDG

JLW

JDH

WJC

JBM

JMG

CRC

Supreme Court of Louisiana

October 14^ 2025

Chief Deputy)Clerk of Court

FormeCouj^pp

STATE OF LOUISIANA

NO. 24-KA-250

VERSUS

FIFTH CIRCUIT

SHANNON SIMPSON

COURT OF APPEAL

STATE OF LOUISIANA

APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON, STATE OF LOUISIANA

NO. 22-2884, DIVISION "G"

HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

April 16, 2025

FREDERICKA HOMBERG WICKER

JUDGE

Panel composed of Judges Fredericka Homberg Wicker,

Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED

FHW

MEJ

SJW

FIFTH CIRCUIT COURT OF APPEAL

A TRUE COPY OF DOCUMENTS AS

SAME APPEARS IN OUR RECORDS

Morj>r>V*»quin

Deputy, Clerk ol Court

App.2a

COUNSEL FOR DEFENDANT/APPELLANT,

SHANNON SIMPSON

Holli A. Herrle-Castillo

COUNSEL FOR PLAINTIFF/APPELLEE,

STATE OF LOUISIANA

Honorable Paul D. Connick, Jr.

Thomas J. Butler

Darren A. Allemand

Brittany Beckner

Zachary L. Grate

DEFENDANT/APPELLANT,

SHANNON SIMPSON

In Proper Person

App.3a

WICKER, J.

Defendant-appellant, Shannon Simpson, appeals his conviction for sexual

battery in violation of La. R.S. 14:43.1.' In this appeal, Mr. Simpson’s appellate

counsel has assigned three errors and Mr. Simpson has also filed a pro se brief,

asserting two additional assignments of error. For the following reasons we affirm

defendant’s conviction.

STATEMENT OF THE CASE

On October 20, 2022, Mr. Simpson was indicted by a Jefferson Parish Grand

Jury for first degree rape upon W.W.,2 while armed with a dangerous weapon, in

violation of’La. R.S. 14:42. Mr. Simpson was arraigned and pled not guilty on

October 21, 2022.

On September 10, 2023, prior to trial, the State filed a Notice of Intent to

Introduce Evidence under La. C.E. Article 412.2 or in the Alternative 404(B) (the

“Article 412.2 Notice”). Following a hearing on May 11, 2023, the district court

ruled that the State would be permitted to introduce evidence of other acts of sexually

assaultive behavior of which Mr. Simpson had been accused unrelated to the crime

for which he was charged in this case.

A jury trial was held in the district court on January 22, 23, and 24, 2024. Mr.

Simpson was found guilty of the lesser included charge of sexual battery (La. R.S.

14:43.1). On March 1, 2024, Mr. Simpson filed a Motion for Acquittal

1 As discussed, infra, Mr. Simpson does not appear to challenge his original sentence herein for excessiveness.

However, his third counselled assignment of error alleges that the district court erred in failing to rule on Mr.

Simpson’s Motion to Reconsider his sentence of 20 years at hard labor, without benefit of probation, parole or

suspension of sentence, with credit for time served, imposed by the district court on the State’s multiple bill of

information, charging him as a second felony offender.

2 The victim, as well as two witnesses who testified at trial about separate allegations of sexual misconduct

committed by Mr. Simpson, will be identified by their initials in compliance with La. R.S. 46:1844 (W)(3), which

protects the identity of victims of sexual offenses and comports with Stale v. R.W.B., 12-453 (La. 12/4/12), 105

So.3d 54; Uniform Rules Courts of Appeal, Rule 5-2. Additionally, W.W., an adult victim whose gender

assignment was male at birth, is a transgender female whose pronouns are “she,” “her,” but who is referred to in the

record using male pronouns. W.W. is the victim’s male identity and K.W. is her female identity. M.H., another

adult victim whose gender assignment was male at birth, is one of the two witnesses that provided other acts

evidence against Mr. Simpson. She also identifies as a transgender female and is sometimes referred to in the record

as M.H. (the witness’ male identity) and other times as K.H. (the witness’ female identity).

App.4a

Notwithstanding the Verdict'(the “Motion for Acquittal”) and a Motion for a New

Trial. A sentencing hearing was conducted on March 7,2024, at which the following

occurred:

The' district court took up and denied Mr. Simpson’s Motion for Acquittal;

The district court took up and denied Mr. Simpson’s Motion for New Trial;

.. 3.. The State filed its Article 412.2 Notice;

■

A victim impact statement was made by W.W.;

The district court stated that it would be sentencing the defendant to 10

years;3

A discussion ensued relative to harassment being perpetrated against

defense counsel ;by an unknown individual associated with the trial;

7..

The district court then sentenced Mr. Simpson to 10 years on the crime of

sexual battery, without benefit of parole, probation or suspension of

sentence, with a recommendation for enrollment in self-help and workrelease programs, and stated that the State had indicated that it would be

. filing a multiple offender bill of information (a “Multiple Bill”);4

The State represented that the Multiple Bill would be filed prior to the end

of the sentencing hearing;

Defense counsel argued for:a more lenient sentence;

10. The district court then sentenced the defendant on his conviction for sexual

battery, to serve 10 years at hard labor in the Department of Corrections,

without benefit of probation, parole or suspension of sentence, to run

concurrently with any other sentence the defendant might be serving. The

defendant was given credit for time served. The district court recommended

3 At that time, the district court did not state that the sentence was at hard labor, that the defendant was being given

credit for time served, whether the sentence was to be served consecutively or concurrently, or that the sentence was

being imposed without benefits of probation, parole or suspension of sentence.

4 Again, at this stage of the proceedings, the district court did not state that the sentence was at hard labor, whether it

was to be served consecutively or concurrently, or that the defendant was being given credit for time served.

App.5a

■■ that the defendant be enrolled in any self-help, work-release, re-entry and/or

drug programs;

11. The State noticed its intent to file a Multiple Bill;

12. The district court set the Multiple Bill Hearing for March 21, 2024, and

called a recess to give defense counsel an opportunity to review the sex

registry requirements with the defendant;

13. Following the recess, the district court informed the defendant that upon his

release, he would be required to register as a sex offender for 15 years.

Defendant received a copy of the sex registry packet and signed to

acknowledge that he had been provided with the sex registry information;

- 14. Defense counsel then filed a written Motion to Reconsider Sentence, which

■

was denied. The district court pointed.out that the oral Motion to Reconsider

Sentence had already been denied earlier in the hearing;

15. Defense counsel filed a Notice of Appeal and the parties and the district

court entered into a discussion about whether the granting of an appeal

would be voided by the Multiple Bill;

16. The State filed the Multiple Bill;

17. The district court granted defendant an appeal, stating that the return date

would be as provided by law;

18. Defense counsel filed a Designation of the Record on appeal, which was

signed by the district court.

A hearing on the Multiple Bill was conducted on March 27, 2024. The district

court found Mr. Simpson to be a second felony offender, vacated Mr. Simpson’s

original sentence and sentenced him as a second.felony offender to 20 years in the

Department of Corrections, at hard labor, without benefit of probation, parole or

suspension of sentence, to run concurrently with any other sentences he might be

serving, and with credit for time served. The district court advised Mr. Simpson of

App.6a

the delays for appealing the sentence and seeking post-conviction relief and

recommended him for any self-help, work-release, re-entry and/or drug programs.

Mr. Simpson was further ordered to register as a sex offender for 15 years upon his

release. Defense counsel orally moved the district court to reconsider Mr. Simpson’s

sentence and stated that she would follow up with a written motion. The State orally

presented its objection to any reconsideration of the sentence. On the same day

(March 27, 2024), defense counsel filed a written Motion to Reconsider Sentence.

The record does not reflect that that motion was ever ruled upon by the district court

and thus, remains pending. Mr. Simpson’s counsel has assigned as error the district

court’s failure to rule on Mr; Simpson’s Motion to Reconsider Sentence (defense

counsel’s Assignment of Error No. 3).5

This appeal follows.

FACTS ■ . ,

Testimony of the Victim, W.W.:

' ’ The victim, W. W. testified at trial that she was sexually assaulted, at gunpoint,

by Mr. Simpson in her apartment on August Avenue in Marrero, Louisiana, on

■November 28, 2021. At the time, W.W. was working as a prostitute. Mr. Simpson

responded to an ad posted by W.W. on TextNow (“TextNow”),6 a software app,

Offering to provide sex for money.7 W.W. stated that, on a telephone call completed

through TextNow, she agreed to perform oral sex on Mr. Simpson for $150.00?

W.W. testified that there was no agreement between her and Mr. Simpson to

participate in role-playing and none for Mr. Simpson to bring a gun into the sex act.

5 As discussed, infra, no issues relative to Mr. Simpson’s sentence are before us because the district court has not yet

ruled on Mr. Simpson’s Motion to Reconsider Sentence and Mr. Simpson has raised no issue in this appeal related to

his sentence other than the district court’s failure to rule on his Motion to Reconsider.

6 Calls and texts may be made and received through the TextNow app, without these appearing in the cell phone

records of the participants

3 W.W. had been posting such ads for approximately two years.

8 Mr. Simpson testified that he only agreed to pay W.W. $100.00 for oral sex.

App.7a

Mr. Simpson texted W.W. that he was in New Orleans and W.W. texted Mr.

Simpson her address! Mr.. Simpson asked W.W. in a text whether she was alone and

she replied that she was. Mr. Simpson texted W.W., indicating that he was about 15

minutes away. While Mr. Simpson was en route to W.W.’s address, she texted him

additional information regarding where to park. When he arrived at her address, at

approximately 5 a.m., W.W. texted Mr. Simpson further instructions directing him

to her apartment.

When the W.W. opened the door to Mr. Simpson, he pushed through into her

living room without being invited in. W.W. observed the extended magazine of a

gun sticking out of Mr. Simpson’s waistband on his left hip. W.W. stated that about

five seconds after entering her apartment, Mr. Simpson pulled the gun (which she

described as being tan or khaki-colored with an army green clip), pointed the gun at

her and began repeatedly asking whether there was anyone else in the apartment.

W.W. responded that there was no one else there. Mr. Simpson then stated that he

was about to “jerk off,” to which W.W. replied, “No, you are not.” At that point, Mr.

Simpson, who was holding the gun in his left hand, pointed the gun at W.W.’s head

and ordered her to undress. Mr. Simpson then, with the gun pointed at W.W.’s head,

ordered her to get on her knees. W.W. at first refused but Mr. Simpson ordered her

to get down on her knees, while still pointing the gun at her.

W.W. complied with defendant’s directions. Mr. Simpson was very fidgety

and began pulling down his pants and telling her not to do anything else, not to

“f*ing move” and to “get down.”- W.W- stated to Mr. Simpson that he did not have

to do this and told him to just leave. Mr. Simpson, still armed with the weapon and

pointing it at W.W., then told W.W. not to move, that he would “blow this b*tch,

and not to do anything crazy. W.W. testified that Mr. Simpson then ordered W.W.

to “give him oral,” and to catch his ejaculate in her mouth. W.W. told Mr. Simpson

that she does not do that and it was going too far, whereupon Mr. Simpson told her

App.8a

that she was going to do it- or he would ‘‘blow this b*tch and not to Ping tell [him]

anything”. Mr. Simpson then forced W.W. to perform oral sex, while holding the

gun a couple of inches from her head. .

Afterwards, Mr. Simpson told W.W. not to Ping move when she attempted

to grab some napkins to clean herself up with. Mr. Simpson was pulling up his pants

and touching W.W.’s head with the gun. W.W. thought that Mr. Simpson felt like

he had lost control at that point.

W.W. was able to grab her robe and some baby wipes and she spit Mr.

Simpson’s semen into one of the baby wipes andthrew it on the floor. W.W. stated

that Mr. Simpson, who was then fully dressed, continued to hold the gun on her

while walking around the room asking her who was there and whether she knew

anybody. W.W. told Mr. Simpson that he had done what he did and that it was time

for him to go, but. he did not leave; instead, Mr. Simpson pushed W.W. down the

hallway toward the back room of the apartment while repeatedly asking her if she

knew anyone and threatening to shoot her if she told anyone.

Ultimately, Mr. Simpson told W-W. not to move and exited the apartment, but

seconds later “busted” back in, pointed the gun at her and told her not to Ping move.

According to W.W., Mr. Simpson then repeatedly (about seven times) went out and

immediately back in the door of her apartment, slamming it, prompting her to beg

him to leave. Mr. Simpson then stated that he was going to “jerk off’ again and

ordered W.W. to “dance” for him. Although Mr. Simpson tried to “go a second

round,” W.W'. refused and he left.

W.W. stated that-during her encounter with Mr. Simpson, she was terrified

and thought that he was going to kill her. She thought that Mr. Simpson was “getting

a kick” out of torturing and controlling her. W.W. testified that at the time, she did

not know Mr. Simpson’s name and that. she had never seen him before this

encounter.

App.9a

W.W, did not call the police after Mr. Simpson left her apartment. She felt

that these types of assaults happen to transgender people a lot and that the police do

not take them seriously.

Additionally, she thought she might be arrested for

prostitution if she reported the incident.

'■

On the date of the incident,- W.W. also did not share what had happened to her

with friends or family members. The next day, W.W.’s grandmother, Linda Perez,

stopped by W.W.’s apartment to check on her. Upon being questioned by Ms. Perez

as to whether there was anything wrong, W.W. told her grandmother what had

happened to her the previous morning, although she did not tell her grandmother that

the encounter was supposed to have been a prostitution date. W.W.’s grandmother

and another family member encouraged W.W. to report the incident to the police,

which she did.9

On November 29, 2021 /about 36 hours after the incident, W.W. called 9-1-1

and reported that she' had been raped at gunpoint.10 In her initial interview with

Deputy Ashleigh Broussard of the: Jefferson Parish Sheriffs Office (the “JPSO”),

who responded to W-.W.’s apartment in response to the 9-1 -1 -call, W.W. did not tell

the deputy’that the incident started out as a prostitution date. In her second interview,

on the same date, with Detective Nicholas J. Vega of JPSO’s Special Victim’s

Section, who also interviewed W.W. at her apartment, she also did not tell him that

the incident began as a prostitution date. It; was only after being taken to the

Investigations Bureau for a further interview that W.W. admitted to Det. Vega that

the incident began as a prostitution date;- W.W. acknowledged that she had not been

truthful about how she met Mr. Simpson when she first reported the incident to her

’ Ms. Perez also testified, over the objection of defense counsel, that W.W. had reported the incident to her on the

morning of November 29, 2021. Defense counsel’s objection was based on the fact that Ms. Perez had not been

disclosed as a witness in discovery, voir dire or opening statement. Ms. Perez stated that, when relating what had

happened to her the previous morning, W.W. had not told her that the incident occurred on what was supposed to

have been a prostitution date. According to Ms. Perez, W.W. reported to her that a date had pushed his way into her

apartment and had forced her, at gunpoint, to perform oral sex on him. Ms. Perez admitted that she was convicted of

misdemeanor theft in 1996, distribution of marijuana in: 2000 and possession of cocaine and marijuana in 2006.

10 A recording of the 9-1-1 call was played to the jury.

App.lOa

grandmother, and in her initial interviews with the Deputy and the Detective, but

stated that she had always been truthful and consistent about the details of the

incident.

• > ■

■

Testimony of Dy; Ashleigh Broussard

r About 15 minutes after W.W.’s call to 9-1-1, Dy. Ashleigh Broussard of the

Jefferson Parish Sheriff’s Office responded to W.W.’s residence. W.W. told Dy.

Broussard that she was transgendered. W.W. informed Dy. Broussard that she had

met Mr. Simpson (whose name she did not know at the time) at a club in New

Orleans approximately two weeks prior to the incident. W.W. stated that this man

whom she had met two weeks previously came to her apartment at approximately

5:25 a.m. on November 28, 2021., held her at gunpoint, and forced her to perform

oral sex on him. W.W. described the gun as being tan with an olive green or army

green magazine. She could not provide any identifying information as to the alleged

perpetrator. After taking W.W.’s statement, Dy. Broussard contacted her sergeant

and then, Detective Nicholas Vega of the Special Victim’s Section.

Testimony of Det. Nicholas Vega

Det. Vega, the lead investigator in the case, arrived at W.W.’s apartment on

November 29,2021, after being contacted by patrol with respect to a reported sexual

assault by an unknown Black male that occurred the previous night. He interviewed

W.W., who reported that she had met the suspect at a bar a couple of weeks earlier

and that they remained in contact after they met. W.W. told Det. Vega that on the

morning in- question, the-man that she had met two weeks before had contacted her

and asked to come to her house to “hang out” and that she had agreed.11 W.W.

informed Det. Vega that the suspect arrived at her apartment armed with a semi

automatic pistol and forced her, at gunpoint, to perform oral sex on him. W.W. stated

11 At the time, W.W. did not know the suspect’s name.

App.lia

that after the suspect ejaculated in her mouth; she. spit out the semen into a baby wipe

and threw it on the floor.

■

The baby wipe into which W.W. had spit the suspect’s semen was collected

by Ml Toups , of the crime scene • investigation team. While Det. Vega was

interviewing W.W., photographs were taken of W.W. ’s apartment by Mr. Toups and

deputies on the scene attempted, unsuccessfully, to interview W.W.’s neighbors.

They also looked for surveillance cameras on W.W.’s apartment building and the

building next door, but found none.

After initially interviewing W.W. at the scene, Det. Vega brought W.W. to

the Investigations Bureau to do a more in-depth interview and to retrieve text

messages from her phone. Once they arrived at the lnvestigations Bureau, Det. Vega

told W.W. that he did not believe that she had told him the truth about how she met

the. suspect. At that point, W.W. admitted to Det. Vega that, in fact, she had not met

the suspect at a bar in New Orleans, but that she met him through an app she used to

advertise herself as a sex worker. Apart from that admission, W.W.’s statement was

consistent with the earlier statements that she had made to Dy. Broussard and Det.

Vega...

•

Det. Vega, who is a cellphone forensics, examiner, then searched W.W.’s

phone and photographed its contents, particularly, communications that took place

through TextNow. The TextNo.w communications contained a thread with a contact

saved as “Assault with a Deadly Weapon.” .W.W. explained that she had assigned

this name to the suspect-after the incident. Det. Vega, reviewing the photographs of

W.W.’s phone that he had taken on November 29, 2021, observed that the date and

time associated with the contact, identified in W.W.’s phone as “Assault with a

Deadly Weapon,” was November 28,2021, at .5:25 a.m. and that the communication

was a TextNow phone call. He also observed that there were follow-up TextNow

text messages between W.W. and the contact. In the text messages, W.W. sent the

App.12a

contact her address and the contact texted back inquiring whether W.W. was alone

in her apartment, Det. Vega testified that he found no evidence in the text messages

between W.W.: and the contact requesting or agreeing to the use of a weapon in

conjunction with the encounter. Det. Vega did not find any communications on

W.W.’s phone that evidenced the agreement between W.W. and the contact.

After photographing W.W.’s phone, Det. Vega conducted a search geared

towards identifying the individual associated with the texts that W.W. had identified

to Det. Vega as being between her and the man who had attacked her. Det. Vega

discovered that the subscriber to the number used by the contact was the defendant,

Mr. Simpson. Det. Vega then obtained search warrants directed to AT&T Global

Demand Center (“AT&T,” the defendant’s cell-phone provider) and TextNow. .

TextNow indicated.to Det. Vega that it,was unable to provide any information to

Det. Vega in conjunction with the search warrant without the original screen name

used by the contact. As W.W.. testified, she had changed the contact name in her

phone to “Assault with a Deadly Weapon,” following the incident and could not

recall the defendant’s original screen name.

In response to the,search warrant, AT&T provided Det. Vega with responsible

financial,party, billing, user, and subscriber information. The subscriber/responsible

financial party was Mr. Simpson. The email address associated with the Mr.

Simpson’s account was lefthandnightmare@gmail.com . AT&T also provided the

GPS locator information consisting of the phone calls and text messages

placed/received by the phone, the dates and times of the calls/messages and the

latitude and .longitude of where the phone , was located at the time of the

calls/messages. Det. Vega explained that the GPS information was not precise but

only allowed him to determine a range within which the phone was located at a

particular time. Upon receipt- of the information from AT&T, Det. Vega was able

to plot the latitude and longitude coordinates, which showed that Mr. Simpson’s

App.lSa

■phone was in the Marrero area on November 28, 2021 at around the time of the

incident. Det Vega also testified that the phone records did not show any calls

having been made by the defendant on his cell phone between 3:00 a.m. and 8:00

a.m. oh the morning of the incident: Calls that were made through TextNow would

not have shown up bn the defendant’s phone.' TextNow does not require an actual

cellphone number, it can go through a VoIP (i.e., voice over internet protocol).

According to Det. Vega, the whole point of TextNow is to conceal information

relative to communications from cell phone records.

Det. Vega stated that once he had identified Mr. Simpson, he ran a criminal

history check, which revealed prior arrests, including an arrest in Lafayette,

Louisiana, in October 2017, involving victim, M.H., and another arrest in Lafayette,

Louisiana in April, 2020, involving victim, D.C.

Det. Vega prepared a photographic line-up which he had presented to W.W.

by another officer, Det. Mike Wible, whb was not involved in the case and did not

know the identity of the suspect. W.W. selected the photograph of Mr. Simpson as

being the perpetrator who forced her, at gunpoint, to perform oral sex on him on the

morning of November 28, 2021.12 Thereafter, Det. Vega obtained an arrest warrant

for Mr. Simpson and Mr. Simplon was ultimately arrested and brought to the

Jefferson Parish Correctional Facility.

Testimony of April Solomon

Ms. Solomon is a forensic DNA analyst with the JPSO Regional DNA

Laboratory (the ’“DNA Lab”) and the parties stipulated to her being an expert in

DNA analysis.

She testified that she had analyzed the evidence in this case

containing DNA.13 Two fractions were extracted, an E (epithelial) fraction and an

12 This information was confirmed by Det. Wible, who testified at trial.

13 The evidence consisted of the disposable wipe, a blood sample oral and buccal swabs taken from W.W. and a

buccal swab of the defendant. The buccal swabs were the “reference” swabs, the DNA extracted from which was

compared against the DNA extracted from the disposable wipe.

App.l4a

: S (semen) fraction. Tests concluded that there were two donors of the DNA on the

disposable wipe. The epithelial fraction was found at least 80 million times more

likely to have originated from the defendant and one unknown contributor than two

unknown contributors,14 while the semen fraction was found to be 100 billion times

more likely to-have originated from the defendant and an unknown contributor than

two unknown contributors. The value of 100 billion is the highest likelihood ratio

■ that is used at the DNA Lab.

Testimony of M.H. (a/k/a K.H.)

M.H. provided Article 412.2/404(B) testimony that, on October 26, 2017, she

visited Lafayette for the purpose of engaging in prostitution. An individual, whom

she identified in court as the defendant, responded to a Craigslist advertisement that

she had. posted offering her services.15

According to M.H., on that date, the

■ defendant agreed to pay her $200 to perform oral sex on him.16

M.H. arranged to meet the defendant at a residential address in Lafayette.

Once she arrived at the residence, she entered the residence through the garage,

walked through an empty living room and then, she and the defendant went into the

defendant’s room. M.H. asked the defendant for the “donation,” referring to her fee,

whereupon the defendant stated that she took too Ping long to arrive and that he was

not paying her anything. According to M.H., the defendant very forcefully slapped

■ her across the face and instructed her to take her clothes off. The defendant then

instructed M.H. to get on the bed and perform oral sex on him. M.H. testified that

14 It was 2 million times likely that the epithelial fraction originated from W.W. and an unknown contributor, as

opposed to two unknown contributors. Since there were only two contributors of epithelial DNA, it is highly likely

that those two contributors were W.W. and the defendant. W.W.’s DNA appears in the sample at a much lower

level than the defendant’s. According to Ms. Simpson, this demonstrates that it is highly likely that W.W.’s DNA

could have been contributed to the sample when W.W. spit the semen into the disposable wipe.

15 M.H. stated that she currently lives in New York City, where she has lived for the last six or seven years. She also

stated that she no longer works as a prostitute but owns vending machines and creates internet content for men who

love transgendered women. M.H. admitted that she had several criminal convictions over the period from 2013 to

2019, three of which were fortheft offenses, one of which was for providing a false identification to the police and

one of which involved driving with a suspended license. M.H. further testified that she is legally blind and has been

prescribed medical marijuana for this.conditioh in New York and further, that she had smoked marijuana in the early

morning hours Of January 23, 2024. M.H. denied that she was high or impaired in any way while testifying,

however.

16 On cross-examination, the defendant testified that he only agreed to pay M.H. $150 for oral sex on that date.

App.l5a

while she was doing as instructed by the defendant, he continued to slap her and

criticize her for not performing to his satisfaction. M.H. also testified that the

defendant threatened, more than one time, to shoot her and that, although she did not

see,a gun, the defendant was very aggressive and she was afraid that he might,

indeed, shoot her. According to M.H. the defendant held her head down and forced

her to allow him to ejaculate in her mouth. M.H. claimed that throughout the

encounter, the defendant slapped her in the face and struck her on the head to

“torture” her. M.H. testified that she never received any money from the defendant.

When the encounter was over, the defendant instructed her to get dressed and

get out. She then spit the defendant’s semen into a napkin that she picked up off the

floor, dressed and exited the residence through the garage door but did not leave;

instead, M.H. called 9-1-1 and reported the incident.17 She remained on the scene

until the police arrived and she reported to the police what had just occurred. M.H.

testified that she refused to permit the police to inspect the messages contained in

her phone and denied that she had tried to delete any messages from her phone,

stating that she had no reason to delete anything because she did not allow the police

access to her phone.

.r'

■ , ,

. M.H. testified that the defendant was still On the scene when the police arrived

and that they interviewed him. She further stated that the defendant had tried to

delete messages from his phone while being interviewed by the police.

M.H. did not believe that she was taken seriously by the Lafayette Police

because she was transgendered and a prostitute. The police took her back to her

hotel room and she later learned that the defendant had been arrested, not for the

alleged assault, but on an outstanding warrant. M.H. testified that she was informed

17 M.H. testified that she did not know the victim in this case, that she did not know the substance of the

allegations being made by the victim in this case against the defendant and that she had not discussed the case or her

testimony with the victim.

App.l6a

by the Lafayette District Attorney’s Office that her case was being dropped for lack

of evidence. She further testified that she was contacted at a later time to assist the

Lafayette District Attorney’s Office in an unrelated case involving the defendant.

M.H. testified that the reason she called .9-1-1 on October 26, 2017 and the

reason that she volunteered to testify against the defendant was because she did not

want him to harm anyone else.

Testimony of D.C.

D.C. also provided Article 412.2/404(B) testimony. D.C. testified that, on

April 27,.2020, the defendant, whom she identified in court, responded to an ad that

she had posted on a prostitution website called “Skipthegames,” advertising herself

to. provide sex for money.18 The defendant requested an hour date for which he

agreed to pay her $200 to perform oral sex on him.19 This date was to be an “outcall,”

and the defendant texted D.C. a residential address. She was driven to the address

by a friend, for safety reasons. .

D.C. testified that when they arrived at the address, the defendant came out

through the garage and told them to park on the side, not in the driveway. She stated

that they did as instructed by the defendant. She then entered the residence with the

defendant, through the garage, while her friend remained in the car. D.C. testified

, that she and the defendant went into his room and she sat on the bed. The defendant

sat on a white or beige bench that was in the room. He was dressed in black and

white Adidas pants. D.C. testified that she asked him whether he was ready to start,

whereupon he indicated that he was, removed his pants and told her to take her

money out of his pants pocket so he would know that she was not a cop.

18 D.C. was living in Lafayette, Louisiana at the time. D.C. testified that although she was advertising on a

prostitution website in April, '2020, she did not consider herself to be a prostitute then or now. She stated that she

was 18 years old at the time and had a six month old baby to support and so she acted as a prostitute because she

needed the money.

19 Mr. Simpson testified that the agreed upon price was $150.

App.l7a

According to D.C., she got up,-turned around, and started to remove the money

from the'defendant’s pants, which he had placed on the bed. D.C. stated that the

defendant then grabbed her from behind, started choking her and asking whether she

remembered him.

D.C. told him that she did not remember him to which he

responded, “B*ch, you tried to rbb me.” D.C. stated that she told the defendant that

she did not try to rob him, she didn’t know him, to let her go and that he didn’t need

to do what he was doing; he did not have to choke her. Then, the defendant threw

her on the ground and using the force of his body, pinned her down. He forced his

penis into her mouth arid masturbated until he ejaculated on her face. D.C. testified

that she was terrified and did not know how she did it, but during the encounter she

tried to call her mother. However, defendant saw her hand moving and jerked the

phone out of her hand. According to D.C.,- when defendant finished, he appeared

disgusted with her and when he got up to go clean himself up, she grabbed her phone

and ran out of the residence. She testified that she was never paid anything by

defendant. D.C. stated that she got into the car with her friend and they pulled the

car to the front of the house, where she called 9-1 -1.

•

D.C. testified that when the:police arrived at the scene and interviewed her,

she did not initially tell them that she was aprostitute because she thought they might

arrest her and she wanted to get back to her baby. She testified that the police

collected a swab of ejaculate from her face.' D.C. also stated that she had scratches

on her neck and a broken fingernail from trying to fight the defendant off. The police

also interviewed the defendant at the scene,'who'informed the police that D.C. was

a prostitute and that she was lying about the-encounter. When the defendant came

out to speak to the police, D.C. saw that the defendant had changed his clothes and

told the police, hoping that they could seize the clothing that the defendant had worn

during the incident. The defendant was' arrested but the charges were eventually

dropped because they said she missed a court date.

App.l8a

■' D.C. testified that she did not know the victim, W.W., she did not know the

facts of the allegations being made by the victim, and she had not discussed her

testimony with the victim.20 D.C. testified that the reason she had agreed to testify

against Mr. Simpson is that he “needs to stop doing what he doing, it’s sick and he

always get[s] away with it.”

Testimony of Mr. Simpson:

Mr. Simpson testified that, on November 28,2021, he was living in Baltimore,

Maryland, where he had relocated to from his hometown of Lafayette, Louisiana,

for work. According to Mr. Simpson, he had spent the weekend of November 28,

2021 in New Orleans attending the Bayou Classic football game and associated

festivities. Mr. Simpson stated that he had shared a room with his good friend,

“Malik,” at the Sheraton Hotel on Canal Street that weekend.

Mr. Simpson stated that at about 5:00 or 5:30 a.m. on November 28, 2021, he

had contacted W.W. for prostitution services. He testified that he was familiar with

W.W. because he had utilized her services in the past, but that their other encounters

took place in Lafayette.21

According to Mr. Simpson, he agreed to pay W.W. $100 for a ten to twenty-

minute, “quick visit” “bareback” .oral sex date.22 W.W. inquired about his location,

which he told her was near Harrah’s Casino. W.W. texted Mr. Simpson her address

and told him to call or text when he got closer to the address for further instructions.

'■ Mr. Simpson testified that.his friend, Malik, drove him from Harrah’s to the location

in Mr. Simpson’s-white Ford pickup truck.

20 D.C. admitted that there was a warrant against her for 2nd degree battery, to which she had pled guilty and had

been sentenced to five years’ probation, which she was currently serving. She further testified that she had not been

offered anything for her testimony; D.C. also admitted that she had come to court from a drug rehab center to

testify. She explained that she was pregnant and addicted to Lortab and Percocet. She tried to stop on her own, but

experienced withdrawals for which she was hospitalized. She had run out of the hospital and the police got her and

brought her back; At that point, she voluntarily entered a drug rehab. D.C. also stated that she had been

hospitalized in 2020 because she was in jail and pregnant. When the police were transporting herback to jail, she

attempted to run away.

21 On rebuttal, W.W. testified that she had never met Mr. Simpson prior to November 28,2021, that she had not had

any previous sexual encounters with Mr. Simpson prior to the incident in question and denied that she had ever been

to Lafayette, Louisiana in her life.

22 W.W. testified that the agreed upon price was $150.

App.l9a

Mr. Simpson stated that, when, they-were about five minutes away from the

address provided by W.W., he called her and was instructed to park on the left side

near the dumpster, which Mn Simpson claims that they did. He claims that he then

called W.W. and informed her that he was outside and she directed him to her

apartment. Mr. Simpson stated that Malik stayed in the car and he went up and

knocked on W.W.’s door. W.W. peeked out through the blinds and then admitted

him into the residence. Mr. Simpson denied that he brandished a firearm or had a

firearm in his waistband. He testified that “[a]t no point in my life have I ever carried

a firearm or forced anyone to do anything against their will sexually.”

Mr. Simpson then related that after entering W.W.’s apartment, she asked him

for the money, which he pulled out and gave to her before they walked into her

bedroom. Once in W.W;’s bedroom, Mr. Simpson testified that he and W.W. got

undressed and proceeded with the sexual services but, during the encounter, a tall

African-American male of athletic build,, wearing a black COVID mask, came out

of the bathroom inside of W.W.’s bedroom. Mr. Simpson stated that he asked what

was going on and the man replied that he was not trying to interrupt them and for

them to continue. The man'then walked into the living room and W.W. apologized

and informed Mr. Simpson that it would not happen again.

Mr. Simpson stated that he and W.W. then continued their sexual encounter

and he claimed that W.W; agreed to let him ejaculated in her mouth. He testified

that, when he was finished, W.W. got up, went to the bathroom, spit out the semen

and cleaned her mouth.1 Mr. Simpson stated.that W.W. then handed him some baby

wipes which he used to clean himself up and then discarded in the bathroom

trashcan. Mr. Simpson then dressed and intended to leave the apartment. He

testified that he was not in W.W.’s apartment for longer than fifteen minutes.

Mr. Simpson stated that as. he proceeded to exit W.W.’s apartment, another

J .

individual was present. The individual proceeded at an abnormal pace to try to get

App.20a

to the door prior to Mr. Simpson. At that point, Mr. Simpson stated that he asked

what was going on and the individual who was standing in front of the door informed

Mr. Simpson that he had “overlapped his time” and that he would have to

“compensate us for missing our next appointment.” Mr. Simpson testified that he

refused, informing the individual that he “did not overlap his time”. He claims that

the individual persisted and demanded that Mr. Simpson pay an additional $150.00,

which he refused to do.

Mr. Simpson related that the individual in the COVID mask was standing in

front of Mr. Simpson and W.W. was behind him. Mr. Simpson testified that he

believed his life was in. danger and he felt he had to get out of there. Mr. Simpson

stated that he again moved to exit the apartment and the individual told him that he

was not leaving and Mr. Simpson, who was a former boxer, hit the individual on the

chin, knocked him out and then ran out of the apartment. Mr. Simpson stated that

he could not call Malik, who was waiting for-him in the truck because he had not

brought his cell phone with him into the apartment.

Once Mr. Simpson and Malik left W.W.’s apartment complex, Mr. Simpson

stated that they stopped for gas and headed back to Lafayette. Mr. Simpson had a

flight from Lafayette to Baltimore that afternoon.. Mr. Simpson testified that he left

his truck at his mother’s house in Lafayette.

According to Mr. Simpson, he was not aware that there was a warrant for his

arrest until he arrived at his hotel in Hanover, Maryland, where his job had provided

him with accommodations. There, he was informed by the Hanover police that they

had been called about a-suspicious act.

Mr. Simpson was then arrested and

extradition proceedings commenced in Maryland. Mr. Simpson claimed that he did

not-fight extradition,-but the extradition process took four months.

Mr. Simpson testified that when he arrived at the Jefferson Parish jail,

detectives came to see him. They requested a buccal swab, which Mr. Simpson

App.21a

refused to provide'without a warrant?3 Once the detectives obtained a warrant, Mr.

Simpson claims that he voluntarily cooperated with the process and allowed them to

take the swab. Mr. Simpson 'denied threatening W.W. with a gun or sexually

assaulting her. '

Mr. Simpson admitted that he had three prior convictions, all of which resulted

in probationary sentences that he had served. The latest occurred in 2020 and was a

conviction for pandering, for which Mr. Simpson was sentenced to and served two

years’ probation.

Mr. Simpson addressed the incidents to which M.H. and D.C. had testified.

■He stated that he met M.H. in October, 2017 on a prostitution website. He stated

that’ he and M.H. entered into an agreement for her to provide him with oral sex, at

his residence in Lafayette, for $ 150.24 Mr. Simpson stated that M.H. arrived late to

the appointment, so he refused to go through with the appointment. Mr. Simpson

testified that the only way into his residence was through the garage, but denied that

M.H. entered the residence. He stated that he met M.H. outside his residence and

told her that she took too long and that he was not going to keep the appointment but

that they could meet another time. According to Mr. Simpson, M.H. never entered

his residence. He further stated that M.H. wanted him to give her money to get an

Uber and accused Mr. Simpson of wasting her time. He testified that he refused to

give M.H. any money and that she became irate and was hollering and screaming at

him about wasting her time.

Mr. Simpson stated • that' he went back into his residence and that

approximately fifteen to twenty minutes later, Lafayette police officers knocked on

his door and informed him that someone had reported being sexually and physically

assaulted.' Mr. Simpson testified that he cooperated with the police and permitted

23 Det. Vega testified that no law enforcement officer ever asked Mr. Simpson for a buccal swab prior to obtaining a

search warrant.'

24 M.H. had testified that the agreed upon price was $200.

App.22a

them to search his residence where they found no evidence. Mr. Simpson explained

that he was arrested on an outstanding warrant for theft and soliciting a prostitute.

Mr. Simpson denied that he forced M.H. to perform oral sex on him or that he

had any type of sexual encounter with M.H. He claimed that the semen in the napkin

that was provided to Lafayette police by M.H., claiming that it contained Mr.

Simpson’s semen, was not a match for him. He also claimed that he never deleted

any text messages from his phone when the police showed up at his door, that the

police report did not say that he did and that he voluntarily provided his phone to the

police in conjunction with their investigation of M.H.’s claims.

Mr. Simpson testified that he and D.C., whom he called “Cocoa,” had grown

up together and had been in a prior romantic relationship that ended because of

D.C.’s addictions. Mr. Simpson stated that on April 27, 2020, he ran into D.C. at

the M&F grocery store and.that they exchanged phone numbers. Mr. Simpson stated

that they started, texting one another and that he invited D.C. to come over to his

residence. Mr. Simpson denied that he had made any agreement for D.C. to perform

oral sex on him or.that he offered her marijuana, as D.C. had testified. He stated that

when D.C. arrived, she had a friend with her. Mr. Simpson testified that he met D.C.

at the garage and told her that her friend could .not come into his house.

;

Mr. Simpson stated that D.C. came inside and that they were on the couch

talking, hugging, and kissing, while fully clothed. He stated that he pulled down his

pants and began to masturbate and that D.C. rubbed his testicles while he did so. He

stated that after about three minutes, he ejaculated and went into the bathroom to

clean up. According to Mr.:Simpson, when he came back into the living room, D.C.

asked him to pay her $150 in exchange for.oral sex. Mr. Simpson asked D.C. whether

she was out prostituting to support her drug habit and she said that she was. Mr.

Simpson claimed that he then told D.C. he was not going to pay her any money and

App.23a

asked her to leave. He denied that D.C. ever performed oral sex on him or that they

had any other sexual encounter other than as he had described.

Mr. Simpson claimed that when he refused to pay D.C. any money for sex and

asked her to leave, D.C. became belligerent and irate and started screaming at him.

He said that D.C. threatened to call the police and he told her to go ahead. At that

point, Mr. Simpson claimed that he exited the residence and sat on the porch waiting

for the police. Mr. Simpson stated that shortly thereafter, the Lafayette police

arrived at his residence and told him the narrative of D.C.’s claims. According to

Mr. Simpson, the police officers advised him not to put himself in that situation

again. He stated that the officers requested to search his residence, but he refused,

stating that they would need to obtain a search warrant in order to search his house.

Mr. Simpson testified that D.C.’s case was dismissed because her allegations

were not true and because she decided not to pursue the matter. Mr. Simpson also

claimed that he had cooperated thoroughly. with the investigation into D.C.’s

allegations as he claimed he did each and every time he was investigated.

■ According to Mr. Simpson,'he contacted D.C. in November 2020 and

arranged for her to provide sexual services to him for money. Mr. Simpson claimed

that on that subsequent occasion, his transaction with D.C. was strictly business,

' with no romance or intimacy. Mr. Simpson testified that this subsequent encounter

occurred at D.C.’s trailer in Scott, Louisiana and that they had agreed that he would

pay her $150.00.for her to perform oral sex on him.

Mr. Simpson stated that he went to D.C.’s residence and called her and told

her to meet him outside. He and D.C. then went into her residence and into her

bedroom whereupon two men jumped out of the bathroom attached to her bedroom,

wearing black ski masks and brandishing guns. Mr. Simpson stated that the men

demanded money and he threw about $500 in cash, which was all the money he had

in his possession at the time, onto the bed. The men demanded more money and

App.24a

when Mr. Simpson told thentthat he didn’t have any more money, they accused him

of lying and pistol-whipped him. Mr. Simpson stated that he fell to the ground, with

his head bleeding, as they ripped off his shirt and robbed him at gunpoint, demanding

that he give it up. The men then shot Mr. Simpson in his left leg, breaking his femur.

Mr- Simpson testified that he was fighting and begging for his life and that he

believed the men were going to kill him.

Mr. Simpson claims that he crawled to his truck and drove himself to the

hospital, where he had surgery the following day. Mr. Simpson stated that the

Lafayette police were notified that he had been shot and came to interview him in

the emergency room. At that time, Mr. Simpson claimed that he informed the

officers that he was soliciting a prostitute and it turned into a botched armed robbery.

According to Mr. Simpson, the police told him that he knew what he was getting

himself into when he solicited a prostitute and that there was nothing that they could

do. Mr. Simpson said that the officers told him they could arrest him for soliciting

a prostitute but that they did not do so. Mr. Simpson stated that the police never

made an arrest related to the incident and that he never saw D.C. again.

Mr. Simpson stated that the investigation into W.W.’s allegations had been

one-sided and nothing but lies. He said that he testified because he wanted the jurors

to hear his side of the story.

On cross-examination, the State questioned Mr. Simpson about incidents of

violent sexual encounters of which he had been accused involving unrelated victims,

D.M., F.A., A.R., N.S., S.J. and.T.C. The prosecutor used police reports to question

Mr. Simpson but did not introduce the police reports into evidence. According to

the State, Mr. Simpson’s testimony regarding the accusations of the other victims

was being elicited to rebut Mr. Simpson’s claim that he had never in his life forced

anyone to do anything sexually.

Mr. Simpson denied sexually or physically

assaulting any of the other victims.

While Mr. Simpson admitted that he regularly

App.25a

solicited prostitutes, he testified that all of his encounters with prostitutes were

■

consensual.

Based upon the evidence presented, the jury convicted Mr. Simpson of the

lesser included offense of sexual battery. Mr. Simpson was thereafter sentenced as

discussed above. Mr. Simpson has now perfected this appeal, assigning a total of

five errors.

DISCUSSION

Defense Counsel’s Assignment of Error No. 1

In defense counsel’s first assignment of error, Mr. Simpson argues that the

State failed to prove that the sexual activity that occurred between W.W. and Mr.

Simpson was non-consensual. Mr. Simpson asserts that the DNA evidence only

proved that the parties had sex, not that the sex was non-consensual. He also

challenges W.W.’s credibility, citing her delayed report, her initial lies about how

she’ met Mr. Simpson and contradictions during cross examination. Defense counsel

argues that, given the lack, of corroborating evidence and W.W.’s admitted

dishonesty,-no rational, fact-finder could have found the defendant guilty beyond a

reasonable doubt. In response, the State contends that the evidence was sufficient to

convict Mr. Simpson of sexual battery because the victim’s testimony alone is

sufficient to support a conviction and that credibility determinations are within the

province of the jury.

The question of sufficiency of the evidence is properly raised in the trial court

by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821;

State v. Williams, 20-46 (La. App. .5 Cir. 12/30/20), 308 So.3d 791, 816, writ denied,

21-316 (La. 5/25/21), 316 So.3d 2. In this.case, defense counsel filed a Motion for

Post-Judgment Verdict-of Acquittal, which was denied.

In reviewing the sufficiency of the evidence, an appellate court must

determine that the evidence, whether direct, circumstantial, or a mixture of both,

App.26a

... viewed in the light most favorable to the prosecution, was sufficient to convince a

. rational trier of fact that all' of the elements of the crime have been proven beyond a

reasonable doubt.. Jackson v. Virginia, 443.U.S. 307, 99 S.Ct. 2781,61 L.Ed.2d 560

(1979); State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ

denied, 15-40 (La. 3/24/16), 190 So.3d 1189. La. R.S. 15:438 provides that when

circumstantial evidence is used to prove the commission of the offense, such

'• evidence, after assuming every fact to be proved that the evidence tends to prove,

must exclude every reasonable hypothesis of innocence. The reviewing court is not

required to determine whether another possible hypothesis of innocence suggested

by the defendant offers-an exculpatory explanation of events; rather the reviewing

, court must determine whether the alternative hypothesis is sufficiently reasonable

that a rational trier of fact could not have found proof of guilt beyond a reasonable

> doubt. Baham, 169 So.3d at 566; State v. Mitchell, 99-3342 (La. 10/17/00), 772

So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d

.973., 977. ■.

Credibility determinations are within the sound discretion of the trier of fact,

. , which:may accept or reject, in whole or in part, the testimony of any witness. The

weight given to the evidence is also within the sound discretion of the trier of fact.

Thus, all credibility determinations and determinations of the weight to be given to

the evidence, as well as all inferences drawn by the trier of fact from such evidence

are to be given deference by the reviewing court. State v. Clifton, 17-538 (La. App.

5 Cir. 5/23/18), 248 Sb;3d 691,.702; State v. Caffrey, 08-717 (La. App. 5 Cir.

:.5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297; State

v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233. An appeals

court may not overturn a verdict on the basis of an exculpatory hypothesis of

innocence presented to, and rationally rejected by, the jury. State v. Lane, 20-181

(La. App. 5 Cir. 1/17/21), 310 So.3d 804. This court will not overturn a verdict

App.27a

. unless, upon review of the record as a whole, we are convinced that any rational trier

, of fact could not have found guilt beyond a reasonable doubt. Lane, 310 So.3d at

804; State v. McKinney, 20-19 (La. App: 5 Cir. l 1/4/20), 304 So.3d 1097, 1103.

Thetestimony of one witness, if believed by the trier of fact, is sufficient to

support a conviction. Clifton, 248 So.3d at 703. In cases involving sexual offenses,

the testimony of the victim alone, if believed, is sufficient to establish the elements

of the offense. Id.', State v. Raye, 17-136 (La. App. 5 Cir. 10/25/17), 230 So.3d 659,

.666, writ denied, 17-1966 (La. 6/15/18), 257 So.3d 674.

In this case, the defendant was convicted of sexual battery, a responsive

verdict to the charged crime of first-degree rape. When a defendant fails to object

. to a legislatively responsive verdict, the defendant’s conviction will not be reversed,

whether or not that verdict is supported by the evidence, provided the evidence is

sufficient to support the offense charged. State ex rel. Elaire v. Blackburn, 424 So.2d

246, 252 (La. 1982), cert, denied, sub nom, Elaire v. Blackburn, 461 U.S. 959, 103

S.Ct. 2432,77 L.Ed.2d 1318 (1983); Statev. Austin, 04-993 (La. App. 5 Cir. 3/1/05),

- 900 So.2d'867, 878, writ denied, 05-830 (La. 11/28/05), 916 So.2d 143. Here, there

is no indication that the defendant objected to the legislatively responsive verdict of

sexual battery, but even if he had, the evidence is sufficient to sustain the defendant’s

■ conviction for sexual battery .

• Pertinent to this case, La. R.S. 14:43.1(A)(1) defines sexual battery as:

Sexual battery is the intentional touching of the anus and 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

the clothing, when any of the following occur:

(l)The offender acts without the consent of the victim.

The defendant admitted that W.W. performed oral sex on him but claimed that

they were engaged in a consensual business transaction. Oral sex falls within the

App.28a

scope of the statute’s .first prong, as it involves the intentional touching of the

offender’s genitals by the' victim.

Clifton, 248 So. 3d at 703 (forced oral sex

constitutes sexual battery). In this case, the jury heard the testimony of W.W., who

stated that the defendant forced her to perform oral sex on him while he was armed

with a dangerous weapon, i.e., a gun. She also told Dy. Broussard and Det. Vega

the same version of events, even though she initially told them a false story of how

she met the defendant.

According to W.W., the defendant pushed his way into her apartment, while

armed with a semi-automatic pistol, pointed the gun at her head and ordered her to

get undressed, despite her repeated objections. She also stated that the defendant

threatened to shoot her and she was afraid for her life.

She testified that the

defendant struck her and that she . believed resistance would only escalate the

-violence. W.W. also testified that while the defendant held a gun to her head, she

complied with his demand that she perform oral sex on him and that he ejaculated

in her mouth. She told the jury that she spit the ejaculate into a disposable wipe and

that the defendant. continued to threaten her with violence after the act was

completed. :

. : The jury’s verdict reflects that the jury believed W.W.’s testimony that she

did not consent to the act and was forced to comply out of fear and threats made by

the defendant and did not believe the defendant’s testimony that the act was a

i consensual business transaction; W.W. was thoroughly cross-examined by defense

counsel and the.inconsistencies in W.W:’s account of the incident were placed before

the jury at trial. It was within the sound discretion of the jury to weigh the evidence

and determine W.W.’s credibility. This Court will not second guess the jury’s

credibility determinations. State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307

So.3d 1189, 1197, writ denied; 21-274 (La. 4/27/21), 314 So.3d 838, cert, denied, -

-U.S.-, 142 S.Ct. 29.6,211 L.Ed.2d 138 (2021).

App,29a

Under the circumstances, W.W.’s testimony alone was sufficient to sustain

the defendant’s conviction of sexual battery. This assignment of error is without

merit. . ,

Defense counsel’s Assignment of Error No. 2:

In this assignment of error, defense counsel asserts that the district court erred

in admitting, over defense counsel’s objections; evidence under La. C.E. arts. 412.2

and 404(B) of eight alleged other crimes.

According to defense counsel, this

evidence was unfairly prejudicial and served to confuse the jury, warranting a

reversal of the defendant’s conviction. Defense counsel complains that the State

gave pre-trial notice that it was going to introduce seven prior allegations of sexual

assault of which the defendant was accused but at trial introduced evidence of eight

previous allegations.

As discussed above, at trial, the State introduced testimony M.H. and D.C..

Defense counseL claims that their testimony, was contradictory and not credible,

given their admissions of prostitution and criminal histories. Defense counsel

further asserts that the State should not have been permitted to cross-examine Mr.

Simpson with police reports of the remaining six other allegations because the police

reports were inadmissible hearsay. Counsel asserts that the district court’s error in

admitting the evidence was not harmless because it unfairly influenced the jury’s

verdict.

The State contends that the testimony of M.H. and D.C. was admissible under

Article 412.2 and that the evidence of the six remaining accusations of sexual

offenses having been committed by Mr. Simpson were admissible to rebut and

impeach his testimony on direct that he had never forced anyone to do anything

against their will sexually. According to the State, it is permissible under La. C.C.

' art. 607(D), to impeach a defendant’s-testimony with inadmissible hearsay. The

State further argues that the police reports were not admitted as evidence at trial and

App.30a

that, iri any event, defense counsel failed, to preserve its hearsay objections for

appeal.

> .

When the State filed its Notice of Intent to Introduce Evidence under Article

412.23 or in the Alternative,. 404(B), it attached police reports of seven prior

allegations of sexual assault that had been leveled against Mr. Simpson that the State

intended to introduce at trial. The State argued that the evidence of the prior

allegations was admissible under Article 412.2,to show the defendant’s pattern of

sexually assaultive behavior and that he uses force or threats of violence to

accomplish his crimes. Alternatively, the State asserted that the prior allegations

were admissible under Article 404(B) to show the defendant’s knowledge, intent and

absence of mistake.

•

As stated above, a hearing was conducted on May 11,2023. At that time, the

State also argued that the evidence was admissible under Article 412.2 to show the

defendant’s “lustful disposition.”25 The State introduced the police reports for each

of the incidents as evidence at the hearing and argued that, although Article 412.2

does not require similarity between the charged crime and the prior allegations, the

incidents were, in fact, very similar to the charged crime.

Defense counsel

contended that the only purpose of the evidence of other allegations was to portray

-Mr. Simpson as a bad man and that, although such evidence might be admissible

under Article 412.2, the district court was required, under Article 403 to determine

whether the evidence would be unfairly prejudicial.

The district court rilled in favor of admitting the evidence, stating that it had

considered La. C.E.. arts., 412.2, 404(B) and 403 and found that the probative value

Of the evidence outweighed thepotential for unfair prejudice. Defense counsel noted

an objection, particularly,-as to the hearsay nature of the police reports. Defense

25 The “lustful! disposition” exception to Rule 404(B) relates to sex crimes involving children. The exception does

not apply here, where the victim is an adult.

App.31a

counsel also noted that if the State : intended to introduce the prior allegations of

sexual assaults at trial, it would need to do so by direct evidence.

At trial; the State presented the evidence of Mr. Simpson’s actions involving

M.H. and D.C. through their testimony. It did not attempt to introduce the police

reports of their allegations or of any. of the remaining six incidents into evidence.

After the defendant elected to testify at trial and after the defendant testified on direct

examination that he had never forced anyone to do anything against their will

sexually, the State cross-examined the defendant on the remaining six allegations,

utilizing the police reports of the allegations.

During the State’s cross-examination of the defendant, defense counsel

repeatedly objected, asserting variously that the State’s questions involved arrests

not convictions,-that the acts of alleged violence that were the subject of the State’s

questions did not relate to sex acts and that the State was improperly impeaching the

defendant with reports that he did not prepare. The district court overruled all but

. one of defense counsel’s objections. It sustained defense counsel’s objection to the

State reading verbatim from a police report in conjunction with allegations made by

■ A.R.

■

■ -

...

In conjunction'With the State’s questions, the defendant testified that all of the

individuals who had accused him of sexual assaults were lying and asserted that none

of the individuals had reported any sexual assaults alleged to have been committed

by him. The defendant also reiterated that he had never forced anyone to do anything

sexual against their-will .

• ■

Following the trial, defense counsel filed a-Motion for New Trial assigning as

grounds therefor that prejudicial error occurred due to the court’s rulings on the

defendant’s pre-trial and contemporaneous objections to other crimes evidence.

Defendant’s counsel argued that the allegations were too remote in time and that the

State should not have been permitted to cross-examine the defendant with

App.32a

allegations made by individuals who were not present in court to testify.

Defendant’s counsel also argued that, even if the district court’s decision to permit

the State to cross-examine the defendant about allegations of sexual assaults were

correct, the State had exceeded the scope by questioning the defendant regarding

acts of violence that did not constitute sexual assaults.

Following a hearing on March 7,2024, the district court denied Mr. Simpson’s

Motion for New Trial. The district court found that there was no prejudicial error in

the rulings on defense counsel’s objections to the admission of the prior allegations

of sexual assault made against Mr. Simpson either prior to or during the trial. Mr.

Simpson’s counsel again raises these issues on appeal.

Generally, La. C.E. art. 404(B) prohibits the introduction at trial of evidence

of other crimes or bad acts committed by a criminal defendant to demonstrate that

the accused committed the charged crime because he has committed other such

crimes in the past. State y. Williams, 09-48 (La. App, 5 Cir. 10/27/09), 28 So.3d

357, 363, writ.denied, 09-2565 (La. 5/7/10), 34 So.3d 860. Article 404(B) provides

that such evidence may, however, be admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident, provided

■ that the prosecution-provides reasonable-advance notice to the defense of the nature

of the evidence or when it relates to conduct, formerly referred to as res gestae, that

constitutes an integral part of the act or transaction that is the subject of the present

in which the accused has been charged. La. C.E. art. 404(B)(1); State v. Prieur, 277

So.2d 126, 128,(La; 1973); State v. Joseph, 16-349 (La. App. 5 Cir. 12/14/16), 208

So.3d 1036, 1046, writ denied, Wl-l-l (La. 4/7/17), 218 So.3d 109). Thus, in order

for other crimes evidence to be admissible under Article 404(B)(1), one of the factors

enumerated in the article must be at issue, have some independent relevance, or be

an element of the crime charged. Additionally, the probative value of the evidence

App.33a

‘ must outweigh its prejudicial effect Joseph, 203 So.3d at 1047, citing La. C.E. art.

403. i

■

Article 412.2 is an exception to Article 404(B) and provides, in pertinent part

’•

that:

■

When an accused is1 charged with a crime involving sexually

assaultive behavior, or with acts that constitute a sex offense involving

a victim who was under the age of seventeen at the time of the offense,

evidence of the accused’s commission of another crime, wrong, or act

involving sexually assaultive behavior or acts which indicate a lustful

disposition toward children may be admissible and may be considered

for its bearing on any matter to which it is relevant subject to the

balancing test provided in Article 403,26

In a case in which the state intends to offer evidence under the

provisions of this Article, the prosecution shall, upon request of the

accused, provide reasonable notice in advance of trial of the nature of

any such evidence it intends to introduce at trial for such purposes.

;

(Emphasis added).

In State v. Wright, 11-141 (La. 12/6/11), 79 So.3d 309, 317, the

Louisiana Supreme Court stated that there is no “restriction requiring [Article

412.2] evidence to meet a stringent similarity requirement for admissibility.

See also State v. Montero, 18-397 (La. App. 5 Cir. 12/19/18), 263 So.3d 899,

' 907. Article 412.2 does not require that the prior act be identical in nature to

the charged offense-. State v. Williams, 11-876 (La. App. 5 Cir. 3/27/12), 91

So.3d 437, 441, writ denied sub hom. State exmel. Williams v. State, 12-1013

(La; 9/21/12), 98 So.3d 334. Evidence of a defendant’s sexually assaultive

behavior is admissible under Article 412.2 and it is not necessary for purposes

of Article 412.2 that the defendant was charged with, prosecuted for, or

convicted of the “other acts” described. State v. Smith, No. 19-607 (La. App.

5 Cir. 1/21/20), 2020 WL 356010, writ denied, 20-328 (La. 5/1/20), 295 So.3d

’945).

26 As can be seen and as stated above, the “lustful disposition” exception applies in cases in which the victim was

less than seventeen years old at the time of the crime, not to cases in which the victim is an adult.

App.34a

The Louisiana Supreme Court, referencing Revision Comment (e) to

Article 412=2, has held that although “sexually assaultive behavior” is not

defined in Article 412.2, the term is a “general expression,” which the

legislature used intentionally in order to reference a broad range of behavior

not limited by any list of “technical” statutory definitions. State v. Layton,

14-1910 (La. 3/17/15); 168 So.3d 358, 361-62.27

Even if independently

relevant, however, evidence may nevertheless be excluded under La. C.E. art.

403 if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, misleading the jury, or by considerations

■ of undue delay or waste of time.

We review a trial court’s ruling on the admissibility of evidence for an

abuse of discretion. Wright, 79 So.3d at 316. The same standard applies to

rulings on the admission of other crimes evidence and evidence under La. C.E.

art.'412.2. Id.; State v. Merritt, 04-204 (La. App. 5 Cir. 6/29/04), 877 So.2d

1079, 1085, wit denied, 04-1849 (La. 11/24/04), 888 So.2d 228. After review

of the record and the law, we find no error in the trial court’s admission of the

evidence relative to allegations of prior sexually assaultive behavior against

Mr. Simpson.

The testimony of M.H. and D.C. reveals similarities with the

defendant’s conduct towards W.W. Each victim testified that she worked as

' a prostitute at the time of her encounter .with Mr. Simpson, as did W.W. Each

'described being contacted by the defendant relative to consensual encounters

' in exchange for money, as was W.W.. Each testified that when they then

27 Revision Comment (e) to Article 412.2, provides that crimes involving sexually assaultive behavior include but

are not limited to rape (R.S. 14:41), aggravated rape (R.S. 14:42), forcible rape (R.S. 14:42.1), simple rape (R.S.

14:43), sexual battery (R.S. .14:43.1), aggravated sexual battery (R.S. 14:43.2), carnal knowledge of a juvenile (R.S.

14:80), indecent behavior with a juvenile (R.S. 14:80), pornography involving juveniles (R.S. 14:81.1), molestation

of a juvenile (R.S. 14:81.2), crime against nature (R.S. 14:89), aggravated crime against nature (R.S. 14:89.1) or

attempt of any of those crimes (R.S. 14:27)., Revision Comment (f) to Article 412.1 also states that the article

applies not only to direct examinations but also to evidence adduced on cross-examination.

App.35a

encountered the defendant, he used violence, coercion, threats and

intimidation to assault them, and force them to perform oral sex on him and

that he never paid fortheir services, just as W.W. testified. This evidence also

highlighted the defendant’s pattern of perpetrating violence upon and

exploiting vulnerable individuals.

T :

As we have found with regard to W.W.’s testimony, M.H. and D.C.

were thoroughly cross-examined by defense counsel. Any inconsistencies,

lack of supporting physical evidence, and any other matters bearing on the

credibility of M.H. and D.C. were placed before the jury. Additionally, the

defendant testified at trial and provided the jury with his own version of the

events that transpired involving M.H. and D.C., and denied ever having

_• assaulted them sexually or otherwise or engaging in sex of any nature with

either of them.

The trial court; in its discretion, found that the testimony of M.H. and

D.C. was’ probative and not outweighed by the risk of substantial prejudice.

W.e find no abuse-of discretion in the district court’s findings. Further, as

stated above, the evaluation of the credibility of witnesses is within the sound

discretion of the trier of fact, in this case, the jury and we will not reweigh its

credibility evaluations on appeal.

;’

Additionally, once the defendant elected to testify and stated under oath

that he had never forced anyone to do anything sexually against their will, the

State had the right to test.that assertion on cross-examination. As stated above,

defense counsel repeatedly objected to the State’s questioning of Mr. Simpson

about the other six allegations of sexually assaultive behavior. The first such

objection was made to the State’s questioning of the defendant relative to

D.M., an individual and incident not disclosed in the State’s Notice of Intent.

Counsel, also objected: on the grounds that'the defendant had not been

App.36a

convicted of anything in conjunction with that incident, a requirement that is

not contained in Article 412.2. The district court overruled the defendant’s

objection on the basis that the defendant’s testimony that he had never forced

anyone into any sexual acts had opened the door to such questioning.

Defense counsel also objected to the State’s questions concerning F.A.,

arguing that questions relative to choking F.A., pulling her into a car and

striking her. were irrelevant to the sexual act that was involved in that incident,

in which F.A. alleged that the defendant had exposed himself to her in the car

and had attempted to make her touch his penis. The district court overruled

this objection on the. basis that the violent acts were within the scope of

sexually assaultive behavior.

The district court sustained defense counsel’s objection to questions

related to A.R; on the basis that the police report used to question the

defendant was not authored, by him and was hearsay. However, objections

concerning N.S. .on the basis that the State’s questions were irrelevant and

prejudicial were overruled.,: Further, the State’s questioning of the defendant

relative to incidents involving S.J. and T.C. did not draw any objections from

defense counsel.

La. C.Cr.P. art. 841 requires that a contemporaneous objection must be

made to any claimed violation of the confrontation clause in order to preserve

the issue for appeal. State v. Harris, 17-303 (La. App. 5 Cir. 12/20/17, 2235

So.3d 1354, 1368, writ denied,. 18-160 (La. 6/15/18), 257 So.3d 675; State v.

Smith, 11-638 (La. App. 5 Cir. 3/13/12), 90 So.3d 1114, 1123 (“[a]n

■irregularity or error cannot be availed of after verdict unless it was objected

. to at the time of the occurrence” and the grounds for the objection are stated

on.the record); State v. Snyder, 12-896 (La. App. 5 Cir. 10/9/13), 128 So.3d

370, 377, writ denied, 13-2647 (La. 4/25/1.4), 138 So.3d 643 (a defendant is

App.37a

limited on appeal to those grounds articulated at trial). Our review of the

record reveals that defendant’s hearsay objections, asserted for the first time

with this Court, were not properly preserved for appeal.

: Further, d'efense counsel admitted that they were provided with the

police reports well in advance of trial and that the defendant was aware that

he could be cross-examined at trial on’ the basis of the information contained

in the police reports. La. C.E. art. 611(B) provides that a witness may be

cross-examined on any matter relevant to any issue in the case, including

credibility . Although as a general, rule, a witness may only be cross-examined

on offenses for which the witness has been convicted, the Louisiana Supreme

Court has sanctioned the introduction of any evidence when the defendant has

opened the door. See State v. Edwards, 420 So.2d 663, 675 (La. 1982).

Additionally, if one side has partially gone into a matter during its direct

examination, the other side may fully explore the matter in cross-examination.

Id. Any doubt as to the propriety or extent of cross-examination is to be

resolved in favor of allowing the cross-examination. Id. at 675.

The defendant specifically denied having ever engaged in any sexually

coercive conduct. We find that this denial opened the door to questioning

relative to other allegations of sexually coercive conduct made against the

defendant. Thereafter, the State’s questions on cross-examination were

directly tied to"the issue of consent raised by the defendant’s testimony which

was proper subject of cross-examination for impeachment purposes.

’

Even if the trial court erred in admitting the testimony of M.H. and D.C.

and in permitting the State to cross-examine the defendant relative to other

allegations of sexually coercive or assaultive behavior, we find such errors to

be harmless. See State v. Frickey, 22-261 (La. App. 5 Cir. 3/1/23), 360 So.3d

19, 50, writ denied, 23-468 (La. 11/8/23),.373 So.3d 59. In determining

App.38a

whether an error is harmless, the question is not whether had the trial occurred

without the error, a guilty verdict would surely have been rendered, but

whether the guilty .verdict actually rendered in the trial was surely

unattributable to the error. Id. An error is harmless beyond a reasonable doubt

if it is unimportant in relation to the whole. State v. Brown, 16-998 (La.

1/28/22), 347 So.3d 745, 791, reh'g denied, 16-998 (La. 3/25/22), 338 So.3d

1138, and cert, denied, - U.S. -, 143 S.Ct. 886, 215 L.Ed.2d 404 (2023).

As we discussed above, the jury’s verdict is a clear indication that it

believed W.W.’s testimony to the effect that the defendant procured oral sex

from her through violence, threats and intimidation. We have found that

W.W.’s testimony alone was sufficient, beyond a reasonable doubt, to convict

the defendant of the crime of sexual battery. Accordingly, any error of the trial

court in admitting the testimony of M.H. and D.C. and in permitting the State

to cross-examine the defendant about prior allegations of sexually assaultive

behavior made against him by non-testifying witnesses was harmless.

Defense counsel’s Assignment of Error No. 2 is without merit.

Defense Counsel’s Assignment of Error No. 3:

In this assignment of error, defense counsel contends that the district

court erred in failing to rule on defendant’s Motion to Reconsider Sentence

' filed on March 27, 2024, following the habitual offender sentencing hearing.

Counsel contends that the defendant received the maximum twenty-year

sentence as a second felony offender, but without a ruling on his Motion to

Reconsider Sentence,’ he cannot properly challenge the sentence of appeal.

Counsel asks us to remand the matter for a ruling on his Motion to Reconsider

Sentence, preserving his right to appellate review of his sentence.

Since the district court has not ruled on the defendant’s Motion to

Reconsider the Sentence, his sentence on the Multiple Bill is not before us.

App.39a

The defendant .is entitled to have the district court rule on his Motion to

Reconsider Sentence, after which, he may preserve his right to appeal that

sentence. See. State v. Mosley, 10-266 (La. App. 5 Cir. 11/9/10), 54 So.3d 692,

697.

• ;

;• . ■

Pro Se Assignment of Error No, 1:

In his first assignment of error, the defendant contends that the State

. violated his constitutional rights when it improperly used his post-arrest

• silence to impeach his statements, made under oath, that he had always fully

cooperated with the police any time he has been investigated and that he fully

cooperated with the detectives in this case. On cross-examination, the State

impeached the defendant by questioning his failure to make a statement to the

■ detectives investigating this case, despite: the-fact that no request for a

statement was made to the defendant.

Defense counsel objected to this

question and moved for a mistrial, which the trial court denied. After an

approximately , one-hour lunch break, the district court admonished the jury

: that they ■ could not consider defendant’s silence against him in its

deliberations. Herein, the defendant contends that the State’s reference to his

silence unfairly prejudiced the jury and violated his right to a fair trial,

.warranting reversal and remand..

On direct examination, the defendant emphasized his cooperation with

:law enforcement in incidents involving W.W.S M.H., D.C. and others. He

stated that he voluntarily cooperated in the investigation of the incident

involving W.W., but. admitted that he- . asked to be presented with a search

warrant prior to providing a buccal swab. According to the defendant, after

. - the warrant was presented, he cooperated fully with law enforcement’s

investigation of the incident.

App.40a

Defendant further testified that, when M.H. accused him of sexual

assault in October 2017, he fully cooperated with the investigation and

allowed a search of his residence without requiring a search warrant.

Regarding the April 2020 incident involving D.C., the defendant again

claimed thorough cooperation with law enforcement’s investigation after

requiring a search warrant in order to search his residence.

On cross-examination, the defendant testified that “all the reports”

indicated that he had always cooperated with law enforcement. Defendant

highlighted incidents in which he voluntarily provided officers with access to

his cellphone, consented to searches and fully explained events to the

: investigating officers, including the investigation of an incident involving

N.S. The State then questioned the defendant’s claims of cooperation by

asking whether he had refused to provide a buccal swab in this case until he

could observe a warrant. Defendant admitted that he had asked for a search

warrant prior to providing a buccal swab, in this case but maintained that his

request for a search warrant did not conflict with his overall cooperation. The

State then asked the defendant whether he had made a statement to Det. Vega

once the detective had taken the defendant’s buccal swab so that he could

. cooperate and be completely up front. Defendant never answered the State’s

question and defense counsel objected.

•

When defense .counsel objected to this, question, the State contended

that the defendant had opened the door to the question by stating that he was

fully cooperative with law enforcement. The district court denied the

defendant’s motion for a mistrial and then called a recess for lunch. During

the lunch recess, defense counsel asked the district court to admonish the jury

that they could not consider any questions or comments relative to whether

the defendant made any statements to police investigating the crime for which

App.41a

■

.• : '

he was'on trial. Once'the jury was brought back in, the district court did

admonish the jury to disregard any questions or statements made by the

Assistant District Attorney relative to whether or not the defendant gave a

statement to the investigating detectives in this case and explained that the

Assistant District Attorney’s statements were not evidence and could not be

considered by the jury.

Following the admonishment, the State asked the defendant whether he

had ever told anyone prior to trial that there had been a man in W.W.’s

apartment who tried to rob him. The defendant stated that he had told this to

his counsel.

In Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 49 L.Ed.2d 91

(1976), the United States Supreme Court held that reference for impeachment

purposes to a defendant’s silence at the time of his arrest and after he has been

Miraridized violated the defendant’s due process rights. The Court explained

■ ■

that “[e]very post-arrest silence is insolubly ambiguous because of what the

State is required to advise the person arrested...it would be fundamentally

unfair and a deprivation of due process to allow the arrested person’s silence

tb be used to impeach an explanation subsequently offered at trial.” 426 U.S.

at 617-118, 96 S.Ct. at 2244-45.

‘

Accordingly, a prosecutor cannot make

reference to the fact than an accused exercised his constitutional right to

remain silent after he had been advised of the right, solely to ascribe a guilty

meaning to his silence or to undermine,-but inference, an exculpatory version

related by the accused for the first time at trial. State v. Robinson, 04-964 (La.

App. 5 Cir. 2/15705), 896 So.2d 1115, 1126, citing State v. Arvie, 505 So.3d

44, 46 (La., 1987). '

Not every mention of the defendant’s post-arrest silence is proscribed

by Doyle, however. An oblique and obscure reference to a defendant’s post-

App.42a

arrest silence, where the examination does not stress the right to remain silent

or attempt to elicit testimony regarding the defendant’s failure to respond to

police questioning does not constitute reversible error. State v. Longo, 08-405

(La. App. 5 Cir. 1/27/09), 8 So.3d 666, 672. The State may pursue a line of

questioning that attempts to summarize the extent of the investigation when

such questions are not designed to exploit the defendant’s failure to claim his

innocence after his arrest, in order to impeach his testimony or attack his

defense. State v. Ledesma, 01-1413 (La. App. 5 Cir. 4/30/02, 817 So.2d 390,

393. The State may also refer to the defendant’s post-arrest silence where the

post-arrest silence is relevant to rebut an assertion by the defense that the

arresting officer failed to properly investigate or that the defendant actively

cooperated with the police when he was arrested. State v. Bell, 446 So.2d

1191, 1194 (La. 1984).

Article 770(3).of the Louisiana Gode of Criminal Procedure prohibits

the judge; the district attorney or a court official, within the hearing of the

jury, from directly or indirectly commenting, during the trial or in argument,

on the defendant’s failure to testify in his own defense. If such a reference or

comment is made, the district court must .grant a mistrial on a motion by the

defense, unless defense counsel, requests only an admonishment.

If an

admonishment is requested, the district court must promptly give it. This

article does not address comments on the defendant’s post-arrest silence after

being Mirandized, which:are controlled by C.Cr.P. art. 771. State v. Barr, 181111 (La. App. 1 Cir. 2/28/19), 275 So.3d 9, 12-13, wit denied, 19-706 (La.

10/15/19), 280 So.3d 599.

Article 771 provides that when a comment, not within the scope of

Article 770, is made by the judge, the district attorney, a court officer or a

witness, the district court, upon request of the defendant or the State must

App.43a

promptly admonish the jury to disregard the comment or remark. If the district

court is convinced that an admonishment is insufficient to ensure that the

defendant will receive a fair trial, the district: court may, on motion of the

defendant, grant a mistrial: State w Olivieri, 03-563 (La. App. 5 Cir.

10/28/02), 860 So.2d 207, 213. Further, following a brief reference to post

arrest silence, a mistrial is not required, nor is a reversal of the defendant’s

■ conviction warranted on appeal, where the record reflects that the trial as a

whole was fairly conducted, the proof of guilt is strong, and the prosecution

made no use of the silence for impeachment purposes. Ledesma, 817 So.2d

at 393.

In this case, the State’s question to the defendant inquiring whether the

defendant ever made a statement to Det. Vega after his buccal swab was taken

falls within the ambit of Article 771. Based on our review of the record, the

State’s question was designed to impeach the defendant’s repeated assertions

of full cooperation with law enforcement in every instance. In United States

v. Fairchild, 505 F.2d 1378 (5th Cir. 1975), the Court found that questions of

the prosecutor regarding the defendant’s post-arrest, post-Miranda silence

may be introduced to rebut the false impression given by the defendant that

he actively cooperated with the police when, in fact, he has not. The Court

•stated:

Assuming the law would , have excluded from evidence [the

defendant’s] silence had he not broached the subject of cooperation,

• once he did broach it the bar was lowered and he discarded the shield

which the law had created to protect him.

505 F.2d at 1383, citing Michelson v. United States, 335 U.S. 469, 69 S.Ct.

213,93 L.Ed. 168 (1948); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354,

98L.Ed. 503 (1954).

App.44a

Accordingly, we find that the defendant opened the door to the State’s

question relative to whether he had made a statement to Det. Vega once his

buccal swab had been taken and that State was permitted to rebut the

defendant’s portrayal of complete cooperation. We find no abuse of the

district court’s discretion in failing to grant the defendant’s motion for a

mistrial. Moreover, even if the district court had abused its discretion by

denying the defendant’s motion for a mistrial, its actions in this regard are

subject to a harmless error analysis. State v. Duong, 113-763 (La. App. 5 Cir.

8/8//14), 148 So.3d 623, 643, writ denied 14-1.883 (La. 4/17/15), 168 So.3d

395. Because the evidence was sufficient, beyond a reasonable doubt, to

convict the defendant of sexual battery, we find that the verdict was “surely

unattributable to [any] error” that might have been made by the trial court in

denying the defendant’s motion for a mistrial. See State v. Johnson, 94-1379

(La. 11/27/95), 664 So.2d 94; 102, citing Sullivan v. Louisiana, 508 U.S. 275,

279, 113 SiCt. 2078, 2081m 124 L.Ed.2d 183 (1993).

Finally, immediately after denying the defendant’s motion for a

mistrial, the district court'called the lunch recess. Prior to the jury being

brought in after lunch, defense counsel, for the first time, requested an

admonition, which the district court immediately gave to the jury upon their

return to the courtroom. We find that the trial court’s admonishment of the

jury was sufficient to ensure that the defendant was able to obtain a fair trial.

See State v. Steward, 954693 (La. App. 1 Cir. 9/27/96), 681 So.2d 1007,1018

' (admonishment by the district court was sufficient to ensure that the defendant

could obtain a fair trial); State v. Franklin, 23-524 (La. App. 5 Cir. 8/28/24),

2024 WL 3963967, clarified oh reh’g, 23-524 (La. App. 5 Cir. 9/19/24)

(district court’s admonishment to jury to disregard the prosecutor’s reference

App.45a

to the defendant’s post-custodial silence after obtaining counsel was sufficient

to ensure that the defendant could obtain a fair trial).

Defendant’s pro se Assignment of Error No. 1 is without merit.

Pro Se Assignment of Error No. 2:

In this assignment of'error, the defendant contends that the State’s

untimely disclosure of W.W.’s grandmother, Linda Perez, as a witness

violated his constitutional rights to due process and a fair trial. The State did

not inform defense counsel prior to trial that the State would be calling Ms.

Perezas a witness. Nor did the State question potential jurors during voir dire

whether any of them knew Ms. Perez. It was. not until after the jury was

selected and sworn in that the State divulged that it would be calling Ms. Perez

as a witness.

According to the defendant, the testimony of Ms. Perez was particularly

damaging .because she testified about W.W.’s emotional state after the

■ incident and implied that he had committed prior bad acts. The defendant

claims that the district court should have excluded Ms. Perez’s testimony or

reopened voir dire and that its failure to do either of those things deprived him

of a fair opportunity to defend himself. This assignment of error lacks merit.

• The State, while initially contending that the police reports provided to

the defense in discovery contained Ms. Perez’s initials, it ultimately conceded

that ho such initials appeared in any police report and that she was referred to

therein simply as. “a relative.”

Nevertheless, although the defense had

requested in discovery to be provided with the identity of each witness of the

alleged offense, the State contended that it was not required to provide the

defense with a witness list and was not required to inform the jury during voir

dire of the identity of its witnesses since it did not know for certain which

witnesses it would call.

App.46a

A defendant is not entitled to a pretrial.list of the State’s witnesses. La.

C.Cr.P. art. 716(F) provides that the State is not obligated to provide any

■ defendant with a witness list for any trial or pretrial matter. The prosecution’s

witness list is .not generally discoverable unless the district court determines

that there exist peculiar and distinctive reasons why fundamental fairness

dictates the discovery of such material. State v Weathersby, 09-2407 (La.

3/12/10), 29 So.3d 499, 501 (per curiam). A defendant must also show

prejudice to; warrant relief based on the State’s late identification of a witness.

Absent prejudice or demonstrated juror conflict, there is no basis to reopen

voir dire once the defendant learns of the identity of a previously undisclosed

witness. See State v. Berry, 95-1510 (La. App 1 Cir. 11/8/96), 684 So.2d 439,

writ denied, 97-278 (La. 10/10/97), 703 So.2d 603; State v. Vice, 22-51 (La.

App. 3 Cir. 4/19/23), 365 So.2d 155, 159-60, 163, writ denied, 23-669 (La.

11/21/23), 373 So.3d 457.

In this case, the defendant made no showing in the district court, nor

does it. make, any before this Court, of any extraordinary circumstances

sufficient to require the exclusion of Ms. Perez as a witness, or to justify the

, .reopening of voir dire by the district court once Ms. Perez was disclosed as a

witness. The police reports referring to a “family member” had been provided

to defense counsel far in advance of the trial. Thus, the defense was at least

. on notice that there was a potential unidentified witness. Although the State

acknowledged that its omission of Ms. Perez’s name during voir dire was

. inadvertent; the defendant has made no allegation nor has he produced any

evidence that any juror was familiar with Ms. Perez. Defendant has also not

shown how her testimony impaired the ability of his counsel to prepare for

trial, or his ability to receive a fair trial. In fact, defense counsel stated that

App.47a

the defense did not believe that Ms. Perez’s testimony added anything to the

. State’s case.

‘

Ms. Perez was the first person to whom W.W. reported the sexual

assault and the one who encouraged W.W; to report the incident to the police.

Her testimony relative to W.W.’s mental state was cumulative of W.W.’s own

testimony in that regard. Ms. Perez did not possess any knowledge or

information that was not possessed by W.W. and, as we have already

discussed, W.W.’s testimony,1 standing alone, was sufficient beyond a

reasonable doubt, to convict defendant of the crime of sexual battery of W.W.

■ Admission of evidence is subject to the discretion of the district court.

Denton v. Vidrine, 06-0141 (La. App. 1 Cir. 12/28/06), 951 So.2d 274, 285.

We find no abuse of discretion by the district court in permitting Ms. Perez to

testify or in denying the defendant’s request to reopen voir dire.

Defendant’s Pro Se Assignment of Error No. 2 is without merit.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent according to La. C.Cr.P.

art. 920; State v. Oliveatix, 312 So.2d 337 (La. 1975); State v. Weiland, 556

So.2d 175 (La. App. 5 Cir. 1990). We have previously discussed the scope of

appeal and the defendant’s outstanding motion to reconsider sentence

■ ‘ • involving the multiple bill proceedings in bur discussion of defense counsel’s

Assignment of Error No. 3. Additionally; the district court failed to observe

the twenty-four-hour'delay between denial Of the defendant’s Motion for New

Trial and Motion fot Acquittal and the imposition of defendant’s original

sentence. The record does not reflect that defendant expressly waived delays,

which would generally require us to vacate defendant’s sentence and remand

the matter for resentencing; State v. Taylor, 20-215 (La. App. 5 Cir. 4/28/21),

347 So.3d 2008,1023. When, as here, the original sentence has been set aside

App.48a

in a habitual offender proceeding, however, the failure to observe the twenty-

four-hour delay is harmless. State v. Cummings, 10-891 (La. App. 5 Cir.

10/25/11), 79 So.3d 386, writ denied, 11-2607 (La. 4/9/12), 85 So.3d 693.

Accordingly, no corrective action is required.

DECREE

For all of the reasons stated above, defendant’s conviction for sexual

battery is affirmed.

AFFIRMED

App.49a

-q-'USAN m. chehardy

CURTIS B. PURSELL

CHIEF JUDGE

CLERK OF COURT

SUSAN S. BUCHHOLZ

FREDERJCKA H. WICKER

JUDE.G, GRAVOIS

MAftC E. JOHNSON

CHIEF DEPUTY CLERK

STEPHEN J, WINDHORST

LINDA M. WISEMAN

JOHN J. MOLAISON, JR.

’ SCOTTU.SCHLEGEL

FIRST DEPUTY CLERK

FIFTH CIRCUIT

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101 DERBIGNY STREET (70053)

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App.50a

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