STATE OF LOUISIANA * NO. 2024-KA-0737
VERSUS * COURT OF APPEAL HOWARD E. BLUE * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 553-343, SECTION “G” Honorable Nandi Campbell ****** Judge Monique G. Morial ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Monique G. Morial)
LOBRANO, J., CONCURS IN THE RESULT JENKINS, J., CONCURS IN RESULT ONLY
JASON R. WILLIAMS DISTRICT ATTORNEY PARISH OF ORLEANS
Brad Scott Zachary M. Phillips ASSISTANT DISTRICT ATTORNEY 619 S. White Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE
Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT P. O. Box 2333 Marrero, LA 70073-2333
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED AUGUST 21, 2025 Defendant, Howard E. Blue, (“Defendant”), appeals his June 27, 2024
MGM conviction for aggravated crime against nature, in violation of La. R.S.
14:89.1(A)(2). For the following reasons, we affirm Defendant’s conviction and
sentence.
Statement of the Case
Defendant was arrested on October 1, 2021 for crimes committed on or
about September 20, 2021. On February 22, 2022, the State of Louisiana charged
Defendant with one count of aggravated crime against nature pursuant to La. R.S.
14:89.1(A)(2). Defendant pled not guilty on March 9, 2022. A jury trial
commenced on June 25, 2024. During the trial, when called to testify, the nine-
year old victim1 initially refused to enter the courtroom. Although the State called
the victim to the stand twice, she failed to appear. Consequently, the trial court
dismissed the jury for the day. The defense then moved for a mistrial. The next
1 The statute requires proof that the defendant committed a prohibited sexual act upon a minor
under the age of eighteen, known by the defendant to be within the kinship degree described in La. R.S. 14:89.1(A)(2), and, for the enhanced sentencing under La. R.S. 14:89.1(C)(2) to apply, that the victim was under the age of thirteen at the time of the act. The State’s evidence proved each element relative to the child victim in this case and is not at issue.
1 morning, the victim appeared ready to testify at trial, yet the court declared a
mistrial. The State sought an emergency writ application with this Court and an
automatic stay pursuant to La. C.Cr.P. art. 775.1.2 In case number 2024-0374, this
Court denied the State’s emergency writ application. However, in 2024-00826, the
Louisiana Supreme Court granted the State’s emergency writ application. The
Supreme Court reversed the ruling of the trial court and remanded for further
proceedings.
Trial re-commenced on June 27, 2024, and the victim testified. At the
conclusion of trial, the jury found Defendant guilty of the charged crime. After
waiving all sentencing delays, the trial court sentenced Defendant to the mandatory
minimum sentence of twenty-five (25) years at hard labor on August 15, 2024.
During the sentencing hearing, the trial court also denied Defendant’s motion for
new trial and granted Defendant’s motion for appeal. This appeal followed.
Facts
On or about September 19, 2021, the then seven-year old victim, and her
younger brother were picked up at their home by the Defendant for an overnight
visit. The next day the victim reported that while visiting with Defendant, she went
into a bedroom with Defendant to play a game. Shortly thereafter, Defendant
pinched her genital area, or “noonie,” with two hands underneath her clothes and
underwear while she was sitting on his bed. The victim also reported that
2 La. C.Cr. P. art. 775.1 provides: If a judge orders a mistrial, then upon motion of either the state
or the defendant, the court shall order an automatic twenty-four-hour stay of all proceedings in which either the state or the defendant may take an emergency writ application to the appropriate reviewing courts with appellate jurisdiction, including the Louisiana Supreme Court.
2 Defendant stopped touching her, and pretended to watch television when Carol
Oribio entered the bedroom. After the alleged assault occurred, the victim
informed Defendant that she would tell her mother about the incident. She also
reported that Defendant became angry and slapped her hard on the leg, making her
cry. The victim ran into the kitchen and first reported the alleged assault to Ms.
Oribio. She indicated that Ms. Oribio did not believe her. When the children
returned home, the victim told her mother (“Mother”), that Defendant had touched
her; unsure of how to report the alleged assault her Mother3 called 911.
Sergeant Ron Howard was dispatched to Mother’s residence and took her
statement, but did not interview the victim. After taking Mother’s statement,
Sergeant Howard scheduled a forensic interview for the victim per New Orleans
Police Department (“NOPD”) procedure at the Child Advocacy Center. During
the course of his investigation, Sergeant Howard interviewed Mother, Carol
Oribio, reviewed the footage of the forensic interview, but did not interview
Defendant. The victim sat for a forensic interview with Tayla Oliver on or about
September 23, 2021, at the New Orleans Child Advocacy Center. During the
interview, the victim disclosed sexual abuse, and also identified a photograph of
Defendant, signed, and dated it. Sergeant Howard then sought an arrest warrant4
for Defendant which was issued on September 25, 2021.
3 In accordance with Ls. R.S. 46:1844(W)(1)(a), we will refer to the victim’s mother as “Mother”
to protect the victim’s identity. 4 We note, the arrest warrant was issued for sexual battery pursuant to La. R.S. 14:43.1.
3 Errors Patent
In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors
patent. After a review of the record, we have detected none.
Discussion
Defendant alleges three assignments of error: (1) the trial court erred in
dismissing a juror ex-parte; (2) Defendant’s motion for mistrial should not have
been reversed by the Louisiana State Supreme Court; (3) and the evidence
submitted at trial was insufficient to support Defendant’s conviction.
Assignment of error number three: insufficiency of the evidence
Defendant argues there was insufficient evidence to support his conviction
for aggravated crime against nature because it was based solely on the conflicting,
uncorroborated and implausible testimony of the victim. When appellate courts
review the sufficiency of the evidence to support a conviction, they apply the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). State v. Dukes, 19-0172, p.7 (La. App. 4 Cir. 10/2/19), 281
So.3d 745, 752. Under the Jackson standard, the court must determine whether the
evidence, viewed in the light most favorable to the prosecution, was sufficient to
support a rational trier of fact’s finding that all of the elements of a crime were
proven beyond a reasonable doubt. Id. See also State v. Tate, 01-0658, p. 4 (La.
5/20/03), 851 So.2d 921, 928.
The appellate court must review the record in its entirety. State v. Mussall,
523 So.2d 1305, 1310 (La. 1988). “If rational triers of fact could disagree as to the
4 interpretation of the evidence, the rational trier’s view of all the evidence most
favorable to the prosecution must be adopted. Id. Defendant was charged with
aggravated crime against nature in violation of La. R.S. 14:89.1(A)(2). Pursuant to
the statute: Aggravated crime of nature is either of the following:
(2)(a)The engaging in any prohibited act enumerated in Subparagraph (b)5 of this Paragraph with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
Thus, the State was tasked with proving the Defendant committed a sexual battery
upon the victim by touching her vagina under or over her clothes. The victim was
under the age of thirteen, Defendant was over the age of eighteen and that
Defendant knew he was related to the victim. The only element of the offense
Defendant disputes was that the State failed to prove he committed sexual battery.
Defendant argues that his conviction was based solely on the testimony of
the victim. “In cases of sexual offenses, the testimony of the victim alone may be
sufficient to establish the elements of a sexual offense, even where the State does
not introduce medical, scientific or physical evidence to prove the commission of
the offense.” State v. Reel, 10-1737, p. 8 ( La. App. 4 Cir. 10/3/12), 126 So.3d 506,
513. However other witnesses, including Mother, Dr. Anne Troy, and Tayla Oliver
5 According to La. R.S. 14:89.1(2)(b): The following are prohibited acts under this Paragraph:
(i) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state. (ii) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
5 testified at trial and corroborated the victim’s disclosure of the alleged assault,
which the State argues satisfied the sexual abuse element of the offense. Tayla
Oliver, a former forensic interviewer with the New Orleans Child Care Advocacy
Center, testified that she interviewed the victim in September 2021. Ms. Oliver
initially could not recall if the victim disclosed sexual abuse during her interview
with the victim. Once the State entered the video of the forensic interview into
evidence, Ms. Oliver then recalled that H.B. disclosed one incident of sexual
abuse, and named Defendant as the perpetrator.
Dr. Anne Troy, a forensic nurse practitioner, testified regarding the medical
incident history she obtained from the victim at the Aubrey Hepburn Care Center
on October 30, 2021 for the purpose of obtaining a medical diagnosis. At trial, the
court qualified her as an expert in child sexual abuse and disclosures. Dr. Troy
reported that the victim provided her a “clear and detailed history of having being
touched by” Defendant. The victim also stated Defendant tried to give her a pill,
but hid it behind his back, once Ms. Oribio entered the room. Dr. Troy relied on
the victim’s sensory statements in determining her medical diagnosis, including
when she recalled telling Defendant that she would tell her mother about the
incident, and his hitting her on the leg after.
During the medical incident history with the victim, Dr. Troy did not detect
any red flags which required reporting to Child Protection. She also noted that as
anticipated, the victim had no genital findings of concern.6 Based on the totality of
6 Dr. Troy testified that tissue in the genital area is similar to tissue in the inside of the mouth.
This tissue heals in hours rather than days, so Dr. Troy did not expect, based on the type of abuse
6 her visit with the victim, Dr. Troy’s medical diagnosis was child sexual abuse. On
cross-examination, Dr. Troy acknowledged that there was no physical evidence of
abuse, noting that she obtained her medical incident history approximately forty
(40) days after the alleged abuse occurred. She testified that it was not her job to
determine whether the victim was lying during her medical evaluation, but
reiterated that she did not observe any red flags, or indications that the victim was
coached during her evaluation of the victim.
Mother also testified at trial. She pointed to Defendant in open court and
identified him. The State also entered the victim’s birth certificate into evidence
confirming their kinship. Mother reported that prior to the alleged incident, the
victim and her younger brother had not seen Defendant for approximately one
year. She testified that a couple of hours after her children returned home, the
victim reported the alleged incident to her, and she in turn called 911. Mother also
testified that the victim’s statements regarding the alleged abuse remained
consistent for the three-year period which elapsed between the incident and trial.
On the last day of trial, the victim testified she missed Defendant, and asked
to spend time with him prior to the alleged abuse. She reported that during her
visit, Defendant asked if she wanted to play a game to which she responded, yes.
He also asked her if she wanted to go into his room, and she did. The victim
recalled telling her mother when she returned home that Defendant touched her.
She testified that he touched her private area with his hands. She also identified
reported by the victim to discover physical evidence of sexual abuse as she did not meet with the victim until a month following the alleged abuse.
7 him in open court as the person who touched her. On cross-examination, the victim
remembered speaking with Dr. Troy and Tayla Oliver, and insisted that she
reported the truth to them.
Defendant also asserts that the victim made inconsistent and untruthful
statements to support his position that her testimony is insufficient to support his
conviction. Defendant notes that the victim reported to Ms. Oliver that he used two
fingers to pinch her genital area, but told Dr. Troy that he only used one finger.
When the victim informed Carol Oribio of the alleged assault, Ms. Oribio denied
that Defendant would commit such an act. However, in her statement to Dr. Troy,
Ms. Oribio responded, “Okay, okay, okay.” Defendant also argues that the victim
only reporting Defendant’s attempt to give her a pill and later hiding it behind his
back when Ms. Oribio entered the room to Dr. Troy, but not reporting to Ms.
Oliver bolsters his argument.
Defendant also points to various other inconsistent statements the victim
made to discredit her testimony, and question her credibility including but not
limited to: (1) whether Ms. Oribio liked her; (2) the victim reporting the Defendant
doing drugs, but referring to drugs as cigars and cigarettes; (3) the victim
describing the reason a family member got divorced; (4) the victim referring to the
clothing she was wearing at the time of the alleged assault as the same clothes
worn in an interview; (5) Defendant screaming at her and calling her the “b word;”
(6) a statement regarding whether Defendant liked or loved her; (7) testimony
regarding the contents of Defendant’s closet during the time of the assault: (8) and
8 whether the victim kissed her mother upon returning home, prior to reporting the
alleged abuse. A credibility determination is a question of fact within the sound
discretion of the jury, which shall not be disturbed on appeal unless its clearly
contrary to the evidence. State v Brown, 12-0853, p. 2 (La. App. 4 Cir. 2/6/13), 109
So.3d 996, 968. “An appellate court does not assess the credibility of witnesses or
reweigh the evidence because ‘[c]redibility determinations, as well as the weight to
be attributed to the evidence, are soundly within the province of the trier of fact.”
State v. Dukes, 19-0172, p. 8 (La. App. 4 Cir. 10/2/19), 281 So.3d 745, 752 (citing
State v. McGhee, 15-2140, p. 2 (La. 6/29/170, 223 So.3d 1136, 1137)).
In further support of his insufficiency claim, Defendant also noted that
victim’s statements to Carol Oribio that he touched her inappropriately were
disputed by Ms. Oribio. Ms. Oribio was the sole witness at trial to contradict the
victim’s account of the incident. She confirmed that the victim and her younger
brother were at her home on the morning the alleged abuse occurred, yet denied
that the victim reported the alleged abuse to her. Instead, she testified that the
victim “seemed very fine to me,” and she never saw a problem with her. Yet, Dr.
Troy testified that Ms. Oribio was the person to whom the victim first disclosed.
“[C]onflicting testimony as to factual matters is a question of weight of the
evidence, not sufficiency,” and “[s]uch a determination rests solely with the trier of
fact, who may accept or reject, in whole or part, the testimony of any witness.”
State v. McDonough, 22-0628, p. 22 (La. App. 4 Cir. 10/27/23), 376 So.3d 1003,
1020 (citing State v. Scott, 12-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d
9 501, 508). Moreover, a single witness’s testimony, if accepted as true by the jury,
is enough to support a factual conclusion. Id. (quoting State v. De Gruy, 2016-
0891, p. 11 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 730)).
The victim consistently reported to multiple people the specific details of the
alleged assault. She described Defendant touching or pinching her genital area to
Ms. Oribio, Mother, Tayla Oliver and Dr. Ann Troy, and testified to the same at
trial. In the medical incident history Dr. Troy obtained from the victim, she
demonstrated how she was pinched, by the movement of her fingers. Dr. Troy
described the victim as “strikingly intelligent in her description of things.” Also,
Dr. Troy testified that she did not detect any red flags during the victim’s medical
incident history that required reporting to Child Protection, nor was she concerned
that the victim had been coached.
Lastly Defendant asserts that the victim’s testimony at trial contained several
memory lapses. He argues that although she stated that she loved to grab snacks
with him, yet she could not recall his name at trial. Also, the victim could not recall
during her trial testimony whether something made her afraid on the day of the
alleged assault, but did remember telling Mother that Defendant touched her
genital area. We note that Defendant had the opportunity to challenge her memory
lapses and conflicting statements on cross-examination, yet did not address them.
At the time of the alleged incident, the victim was seven years old, and had
not seen him in more than one year. At trial, at least two years later, the victim was
nine years old confronting the Defendant with her accusations, and identifying him
10 in open court as the perpetrator of sexual abuse. Confronting her abuser and
relating the details of the traumatic event seemed a daunting task for the victim as
she initially refused to enter the courtroom. It is not unreasonable based on her age
and the gravity of the charged offense that the jury would not completely disregard
her testimony because she was unable to relate the events and circumstances
concerning the alleged abuse with specificity.
Notwithstanding Defendant’s arguments, the jury found the victim’s
testimony both credible and sufficient to support Defendant’s conviction.
Defendant has not demonstrated that the jury’s factual findings were clearly
contrary to the evidence. After a review of the evidence in the light most favorable
to the prosecution, we find that a rational trier of fact could have found the
Defendant guilty beyond a reasonable doubt. This assignment of error lacks merit.
Assignment of error number one: Dismissal of juror ex-parte
After the State and Defendant rested their cases, the trial court informed
counsel for both parties that a juror was crying hysterically outside the jury room,
and requested to speak with the trial judge. Subsequently, the judge spoke with the
juror ex-parte, removed her and replaced her with an alternate. Defendant argues
that the trial court prevented him from being present and questioning the juror in
the judge’s chambers in violation of La. C.Cr. P. art 831(A)(3).
La. C.Cr.P. art. 831(A)(3) provides, in pertinent part, a defendant charged
with a felony shall be present “[a]t the calling, examination, challenging,
impaneling, and swearing of the jury, and at any subsequent proceedings for the
11 discharge of the jury or of a juror.” Defendant seeks to have his conviction
overturned for the failure of the trial judge to strictly comply with the provision of
the code article. However, Defendant made no request to be present in chambers
during the judge’s ex-parte discussion with the juror. “While defendant’s absence
from the courtroom during the ‘calling, examination, challenging, impaneling, and
swearing of the jury, and at any subsequent proceedings for the discharge of the
jury or of a juror’ has the effect of vitiating the entire proceedings, the rights
granted by Article 831 are not absolute and can be waived by voluntarily absenting
oneself or by not filing a contemporaneous objection to a discussion held in his
absence.” State v. Brown, 23-01715, p. 6 (La. 12/13/24), 397 So.3d 321, 326
(quoting State v. Wilson, 44-586, p. 13 (La. App. 2 Cir. 10/28/09). 26 So.3d 210,
219-20)).
The record reveals that the trial court gave both the State and the Defendant
an opportunity to be heard prior to speaking with the juror. Counsel for Defendant
stated:
MS. RUFFIN: I want -- am I to be heard first? Your Honor, based on that information, I think that it is imperative that the juror be able to express his or her concerns, and, based on what the juror says, I would have a different motion and/or objection, but she could be crying because of this or she could be crying because she found out something happened to her family member. We don't know, so we won't know until we know.
The State had no objection to the judge speaking with the juror. The Court then
responded:
12 THE COURT:
Thank you. Let me explain something to you, Ms. Ruffin. I'm not going to speak to the juror and then come back and tell you what they said, so you can make a decision on what to do based on that information. I intend to speak to the juror and, depending on if she is a juror or alternate, if she is saying -- if she conveys to me that she is unable to proceed, then I'm going to replace her with an alternate. I want y'all to know that.
Defendant’s counsel indicated to the judge that she understood, and she would re-
urge her motion for a mistrial on the basis that the emotional juror may have
influenced the entire jury panel. Shortly thereafter, the judge conducted the ex-
parte colloquy with the juror, and subsequently replaced her with an alternate after
their discussion.
The State argues that Defendant’s counsel did not lodge a contemporaneous
objection to the defendant’s exclusion from the judge’s ex-parte conversation with
the juror, or when the judge removed her, and thus is unable to argue this issue on
appeal. La. C.Cr.P. art. 841(A) states, in pertinent part, that “[a]n irregularity or
error cannot be availed of after verdict unless it was objected to at the time of
occurrence.” On appeal, a defendant is limited to the grounds articulated at trial.
State v. Baker, 582 So.2d 1320, 1336 (La. App. 4 Cir. 5/30/91). Thus, he must
point to the specific error during trial, so that the trial court is afforded the
opportunity to make the proper ruling and prevent or cure that error. Id. “Without a
contemporaneous objection at trial, the appellate court will not consider an
assignment of error, raised for the first time on appeal.” State v. Trung Le, 2017-
0164, p. 18 (La. App. 4 Cir. 4/11/18) 243 So.3d 637, 656. The record reflects that
defense counsel did not contemporaneously object to the defendant’s absence from
the trial court’s ex-parte discussion with the trial judge. Accordingly, he waived
13 his right to be present during the in-chambers conversation, and is now precluded
from raising this issue on appeal pursuant to La.C. Cr. P. art. 841.
Defendant also avers that the trial court erred in dismissing the juror ex-
parte. “A trial judge has the discretion to replace a juror with an alternate upon
finding that the juror has ‘become unable to perform or disqualified from
performing’ his or her duty. La.C.Cr.P. art. 789.” State v. Derouselle, 99-3282 (La.
4/28/00), 761 So.2d 1269, 1270. As stated above, defense counsel did not lodge a
contemporaneous objection to the removal of the juror when the trial judge
dismissed her. Instead, defense counsel moved for a mistrial based on the
emotional juror potentially influencing the entire jury panel. Again, we find
defense counsel did not properly preserve this issue for appellate review. We also
find the trial court did not abuse its discretion in removing the juror and replacing
her with an alternate.7 This assignment of error lacks merit.
Assignment of error number two: Defendant’s motion for mistrial should not have been reversed
Defendant argues that the Louisiana Supreme Court erred in reversing the
mistrial granted by the trial court alleging prejudice resulted when the victim
refused to enter the courtroom, or take the witness stand when she was first called
to testify, on June 25, 2024. Defendant also states that the law of the case doctrine
should not be applied in this case because when the Supreme Court reversed the
mistrial it produced an unjust result.
7 The trial judge included the transcript of the ex-parte colloquy in the appeal record. During the
exchange, the judge explained her concern to the juror that she could not be impartial because of her heightened emotional response to the victim’s testimony. The juror responded that she was an empathetic person and “knew when children lie.” The judge then removed the juror out of an abundance of caution noting the emotionally charged nature of the trial.
14 The State called the victim twice to the stand. Initially, the court waited for a
couple of minutes for her to be brought into the courthouse. Once she arrived, the
victim refused to enter the courtroom without Mother. The trial judge then allowed
Mother to escort the victim into the courtroom with a witness sequestration order
in effect, but she failed to appear after being called a second time. Defendant
moved for a mistrial, based on undue delay and prejudice.
The next morning, the victim appeared for court ready to testify. The trial
court subsequently granted the defense’s motion for mistrial. The State requested
an emergency stay pursuant to La. C.Cr.P. art. 775.1, and sought an emergency
writ application with this Court, which was denied.8 The Louisiana Supreme Court
granted the State’s emergency writ application, however, reversing this Court’s
decision. “Without giving the young witness another opportunity to testify,
granting a mistrial was an abuse of discretion.” State v. Blue, 24-00826 (La.
6/26/24), 388 So.3d 1189. The State argues, in contrast, that the Supreme Court’s
disposition of this matter bars reconsideration of this issue under the law of the
case doctrine.
“The law of the case refers to a policy by which the court will not reconsider
prior rulings in the same case.” KeyClick Outsourcing, Inc. v. Ochsner Health
Plan, Inc., 11-0598, p. 7 (La. App. 4 Cir. 3/14/12), 89 So.3d 1207, 122. “The
policy reasons behind the doctrine include: (i) avoiding re-litigation of the same
issue, (ii) promoting consistency of results in the same litigation, and (iii)
promoting efficiency and fairness to both parties by affording a single opportunity
for the argument and decision of the matter at issue.” Id. At pp. 7-8, So.3d at 1211-
1212. Furthermore, this Court has previously stated that reversal of a pre-trial
8 See 2024-0374.
15 determination is not warranted unless a defendant can present new evidence
demonstrating that the earlier decision was patently erroneous and would produce
an unjust result. State v. Gillet, 99-2474, p. 5 (La. App. 4 Cir. 5/10/00), 763 So.2d
725, 728.
We find that Defendant has presented no new evidence on appeal to support
his position that the victim’s delay in testifying was prejudicial to the jury. He
admitted in his brief to this Court that he has recycled the same arguments made in
his original motion for mistrial in the trial court. The jurisprudence is clear that the
Supreme Court’s ruling reversing Defendant’s motion for mistrial is the law of the
case, and as such this court and the trial court are bound by its ruling. We find no
merit in this assignment of error.
DECREE
For the foregoing reasons, we affirm Defendant’s conviction and sentence
for aggravated crime against nature pursuant to La. R.S. 14:89.1(A)(2).
AFFIRMED