State of Louisiana v. Jonathan Ray Easterling

• Court: Louisiana Court of Appeal
• Decided: December 23, 2008
• Docket: KA-0008-0729
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

KA 08-729

STATE OF LOUISIANA

VERSUS

JONATHAN RAY EASTERLING

**********

APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 04-3247 HONORABLE LEO BOOTHE, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

John Frederick Johnson District Attorney 4001 Carter St., Suite 9 Vidalia, La 71373 (318) 336-5526 Counsel for Appellee: State of Louisiana

Ann Sheridan Siddall Attorney at Law P. O. Box 1154 Vidalia, LA 71373 (318) 336-4267 Counsel for Appellee: State of Louisiana William A. Yarbrough Attorney At Law 109 Carter St. Vidalia,, LA 71373 (318) 336-8480 Counsel for Defendant: Jonathan Ray Easterling SAUNDERS, Judge.

On June 28, 2006, the Defendant, Jonathan Ray Easterling, was charged by bill

of information with oral sexual battery, a violation of La.R.S. 14:43.3. Following a

bench trial held on May 20, 2008, the Defendant was found guilty as charged. The

Defendant was sentenced on December 12, 2008, to serve five years at hard labor,

without benefit of probation, parole or suspension of sentence, and was given credit

for time served. The Defendant is now before this court on appeal, asserting that the

State failed to prove an essential element of the offense. The Defendant also raises

three additional assignments of error challenging his conviction. We find that the

Defendant’s conviction should be affirmed.

FACTS:

In November, 2004, on more than one occasion, the Defendant, a nineteen-

year- old male, performed oral sex on the victim, a seven- year-old male.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

there are no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE:

By this assignment of error, the Defendant argues that the State did not present

any evidence regarding the age of the Defendant or the age difference between the

Defendant and the alleged victim. As such, the Defendant maintains that the State

failed to prove an essential element of the offense, as required by Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979).

Oral sexual battery is defined in La.R.S. 14:43.3, which reads, in pertinent part:

A. Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender when the other person has not yet attained fifteen years of age and is at least three years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or

(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

The Defendant’s written statement was taken on December 19, 2004, and was

admitted into evidence at trial. The Defendant’s date of birth is indicated at the top

of the statement, November 24, 1985, and that he was nineteen years old at the time

the statement was written. Also, Deputy Amos Coley testified as to the content of the

statement, confirming that it reflected the Defendant’s date of birth and his age at the

time the statement was written. The Defendant’s date of birth is also provided on his

arrest warrant which was also admitted into evidence at trial. As such, the trial court

was presented with evidence of the Defendant’s age at the time of the offense.

With regard to the age difference, the victim testified at trial that he was nine

years old. Also, the Defendant’s arrest warrant reflects that the victim was seven

years old at the time of the offense. Thus, it is clear from the evidence submitted at

trial that the Defendant was more than three years older than the victim at the time of

the offense and that the victim had not reached the age of fifteen at the time of the

offense. Accordingly, there is no merit to the Defendant’s argument.

ASSIGNMENT OF ERROR NUMBER TWO:

This assignment of error is twofold. First, the Defendant argues that his

confession was not given freely and voluntarily. Second, the Defendant contends that

the trial court failed to allow the testimony of Mary Huhn, the Concordia Parish

School Board Special Education Supervisor, as to her opinion regarding the

Defendant’s ability to understand his rights and the waiver of same based on his

educational limitations.

2 At trial, Deputy Amos Coley testified that he was the arresting officer and had

read the Defendant his constitutional rights at the time he was arrested. Upon their

arrival at the sheriff’s office, Deputy Coley read the Defendant his rights again and

had him sign an advice of rights form confirming same. The Defendant indicated to

Deputy Coley that he understood his rights. Further, Deputy Coley stated that the

Defendant did not seem to be under the influence of alcohol or drugs, nor did he seem

impaired in any way. Deputy Coley denied forcing the Defendant to sign the form,

and he denied offering or giving the Defendant anything of value to entice him to sign

the form. According to Deputy Coley, the Defendant signed the form freely and

voluntarily.

With regard to the written statement that followed, Deputy Coley testified that

he was present when the written statement was taken from the Defendant and

witnessed the Defendant actually writing his statement. Deputy Coley also stated that

he witnessed the Defendant sign and date the statement. Again, Deputy Coley denied

forcing the Defendant to give the statement, or making any promises or offering him

anything of value to entice the Defendant to give a statement. Lastly, Deputy Coley

denied beating or threatening the Defendant to give a statement.

The Defendant’s statement began at 1:40 p.m. and ended at 2:45 p.m. During

this time, Deputy Coley indicated that the Defendant did not write the entire time, but

started and stopped, taking an hour to write the statement. Deputy Coley denied

interrogating the Defendant during this time. On cross-examination, Deputy Coley

had no other explanation as to why it took the Defendant an hour and five minutes to

write his ten-line statement.

Next, the Defendant called Mary Huhn to testify as to the voluntariness of the

Defendant’s statement. Ms. Huhn stated that prior to being the special education

3 director, she was a school psychologist. She obtained a bachelor’s degree in special

education, then a master’s degree in school psychology and then became certified so

she could be supervisor of special education. She did not hold any type of doctorate

degree. Ms. Huhn had never testified in court regarding special education testing, nor

had she been qualified to testify about the same. She explained that the type of

testing done on special education students depends of the referral concern, such as

academic, social/emotional or cognitive concerns.

When Ms. Huhn was tendered as an expert in testing under the areas of concern

she had described, the State objected on the basis that she did not hold a Ph.D. and

had never testified as an expert. As such, the State objected to her opinion testimony

relating to any records for which she was a custodian. The State noted that it would

not object to her testimony if it involved her testing of the Defendant while he was

in school or to the introduction of such records. The State objected, however, to any

opinion she may have derived from any testing.

The trial court initially agreed to allow Ms. Huhn to testify and give an opinion

on a limited basis regarding the Defendant’s educational propensities and the like.

The State followed with the argument that the Defendant’s mental competency was

not an issue because he had not requested a sanity commission. As such, the State

maintained that his capacity to stand trial was not at issue and that the evidence was

irrelevant. The Defendant re-urged that the evidence was going to the voluntariness

of his statement. The trial court concluded that the voluntariness of the statement

had already been addressed and ruled that it would not allow Ms. Huhn to testify.

On appeal, the Defendant asserts that the State bears the burden of proving the

voluntariness of a confession or inculpatory statement and that he intelligently waived

his Miranda rights. If the State meets its burden, then the burden shifts to the

4 Defendant to prove a mental defect which renders him unable to understand his rights

and that he was incompetent to waive them. The Defendant maintains that the

testimony of Ms. Huhn was his attempt to meet this burden.

In support of his argument, the Defendant refers to State v. Bordelon, 597

So.2d 147 (La.App. 3 Cir.) writ den., 600 So.2d 678 (La. 1992). In Bordelon, the

court summarized the jurisprudence on this issue as follows:

To meet its burden, the State may rely on the presumption of sanity provided in La.R.S. 15:432. State v. Ashworth, supra. Because of this presumption, defendant has the burden of proving a mental defect which renders him unable to understand his rights and, therefore, incompetent to waive them. State v. Glover, 343 So.2d 118 (La.1976), on rehearing. The State is not required to negate a defendant's mental abnormality, but it must prove beyond a reasonable doubt that the confession or statement a defendant gave was voluntary. Defendant must then prove the existence of a mental defect or disorder that prevented his confession or statement from being intelligently and voluntarily made. The law is clear that, when the issue is whether an accused’s level of intellectual capacity precludes him from effectively understanding the essential nature of his right to remain silent, to have assistance of counsel, and of the consequences of his speech, much discretion is accorded to the trial court's determination. State v. Lefevre, 419 So.2d 862 (La.1982); State v. Mire, 492 So.2d 180 (La.App. 3 Cir.1986), writ den., 496 So.2d 347 (La.1986).

Id. at 149-50. In an attempt to prove the existence of a mental defect or disorder that

prevented his confession or statement from being intelligently and voluntarily made,

the defendant in Bordelon offered the testimony of a board certified social worker

who held a master’s degree in social work and had been recognized as an expert in

the field of psychiatric social work. The State objected to the witness’ diagnostic

opinion which was sustained by the trial court because it did not know whether a

board certified social worker or a psychiatric social worker could make a diagnosis.

On appeal, the court held that the record was sufficient to recognize the witness as an

expert in the field of psychiatric social work, and thus, the trial court erred in not

allowing his testimony concerning his evaluation of the defendant.

5 In the instant case, we find that the Defendant did not show that Ms. Huhn was

qualified to testify as to the existence of a mental defect or disorder that prevented his

statement from being intelligently and voluntarily made. First, Ms. Huhn’s

experience is in the field of special education, which she testified includes academic,

social/emotional or cognitive concerns. She also stated that she has extensive

experience and training in testing students for same. Although Ms. Huhn’s testimony

may show that the Defendant had academic, social/emotional or cognitive deficits,

she did not indicate that she was qualified to render a diagnostic opinion as to the

Defendant’s ability to understand the rights he waived prior to giving his statement.

Also, Ms. Huhn has never been qualified as an expert in court. As such, we find that

the Defendant has not shown that the trial court abused its discretion.

Considering the evidence and testimony presented at trial, this court finds that

the Defendant has not shown that his statement was not given freely and voluntarily.

There was no evidence that he was forced or enticed to make a statement. Although

a significant amount of time elapsed while the Defendant was writing his ten-line

statement, there was no evidence to suggest that anything else was going on in the

room while the Defendant was writing his statement. Additionally, there was no

evidence presented to suggest that the Defendant was not mentally capable of waiving

his rights. The Defendant did not show that Ms. Huhn was an expert qualified to

testify as to the Defendant’s ability to understand his rights. Accordingly, this

assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE:

In his final assignment of error, the Defendant argues that the trial court should

have allowed the testimony of Johnny Loomis, an investigator with the district

attorney’s office. Mr. Loomis was called by the Defendant to testify about the

6 criminal history of the victim’s father, specifically child molestation, and that the

victim was in his father’s custody at the time of the offense. The State objected to

this line of questioning based on relevance. The trial court held that the testimony was

irrelevant because the victim’s father had not been called as a witness.

Next, the Defendant asserted that Mr. Loomis served as the victim’s father’s

probation officer prior to working for the district attorney’s office and had

independent knowledge of his criminal history. The Defendant urged that the victim’s

father could have influenced the child in a way to deflect from the true perpetrator.

The trial court held that the Defendant’s theory that the victim’s father was familiar

with the subject matter and somehow influenced the child was far too speculative.

On appeal, the Defendant asserts that evidence concerning the victim’s father

is relevant based on the victim’s testimony that his father talks to him a lot to make

sure the victim “still knows.” The reference to the record involving the victim’s

testimony reads as follows:

Q Other than talking to the district attorney, here, who else have you talked to about this?

A I talked to my dad because he always asks me sometimes. He asks me a lot of times to make sure that I still know.

Considering the victim’s testimony, this court finds that the Defendant did not

show that Mr. Loomis’ testimony was relevant. The trial court’s finding that the

Defendant’s theory was highly speculative was reasonable, considering the brief

question and answer of the victim who was nine years old at the time of trial with

regard to who he spoke to about the allegations. Also, the victim’s father was not

called to testify at trial, and thus, the testimony could not be used as impeachment

evidence. As such, the Defendant did not establish the relevance of Mr. Loomis’

testimony.

7 CONCLUSION: