NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA * NO. 2025-KA-0232
VERSUS * COURT OF APPEAL JOSE E. MORENO * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 22-0553, DIVISION “B” Honorable Michael D. Clement ****** Judge Paula A. Brown ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
JENKINS, J., CONCURS IN RESULT
Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470-8583
Jose E. Moreno #795214 David Wade Correctional Center 670 Bell Hill Road – H2B Homer, LA 71040
COUNSEL FOR DEFENDANT/APPELLANT
Charles Ballay DISTRICT ATTORNEY
Jason Napoli ASSISTANT DISTRICT ATTORNEY 333 F. Edward Hebert Blvd. Bldg. 201 Belle Chasse, LA 70037
COUNSEL FOR PLAINTIFF/APPELLEE
AFFIRMED FEBRUARY 12, 2026 PAB DLD SCJ
This is a criminal appeal. Defendant, Jose E. Moreno (“Defendant”),
appeals his conviction and sentence of aggravated rape in violation of La. R.S.
14:42.1 For the reasons more fully outlined below, we affirm Defendant’s
conviction.
FACTS AND PROCEDURAL HISTORY
On February 23, 2022, a grand jury indicted Defendant for the 2004
aggravated rape of the victim (“J.T.”),2 who was three years and four months old at
the time of the offense. Defendant entered a plea of not guilty on April 25, 2022.
Before trial commenced, the State moved, pursuant to La. C.E. art 412.2,3 to
1 Louisiana Revised Statutes 14:42 will be discussed more fully, infra.
2 The initials of the juveniles involved in this matter will be used instead of their names to ensure
their confidentiality. See La. Ch.C. art. 412; Uniform Rules of Louisiana Courts of Appeal, Rule 5-2. 3 Louisiana Code of Evidence article 412.2 provides:
A. When an accused is 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.
B. 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
1 introduce evidence that Defendant committed a sexual battery against another
juvenile, A.C., in Pike County, Mississippi and a second rape of J.T., which also
occurred in Pike County. The district court granted the State’s motions to
introduce said evidence. This matter came for a three-day jury trial on October 15,
2024. The State presented eight witnesses. The Defendant did not present any
witnesses of his own. The pertinent testimony elicited at trial is summarized
below.
Mary Cosse
Mary Cosse (“Ms. Cosse”)—J.T.’s grandmother and Defendant’s ex-wife—
has two daughters, Amy Tiser (“Mrs. Tiser”) and Joaunna Coon (“Mrs. Coon”).
Mrs. Tiser has two children, one being J.T. Mrs. Coon has three children, one
being A.C. Ms. Cosse began a relationship with Defendant in 2004. She and
Defendant lived together in Port Sulphur, Louisiana, at the Delta Hotel in the same
room. Ms. Cosse said that J.T. would frequently visit her and Defendant when
they lived at the Delta Hotel, and there were many times when J.T. was left alone
with Defendant. Ms. Cosse testified that there was a common room with a piano in
the Delta Hotel where Defendant was alone with J.T., which was close to her
apartment. She explained that after Hurricane Katrina struck, she and Defendant
evacuated to McComb, Mississippi, where they lived together.
Ms. Cosse testified that J.T. and A.C. frequently visited her residence in
McComb and that there were numerous times that Defendant was left alone with
each of the children. She explained that in July 2006, her daughter Mrs. Coon
notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.
2 called her and told her that Defendant had molested A.C. Ms. Cosse said that she
immediately confronted Defendant and kicked him out of her house. She later
learned that Defendant also molested J.T. Ms. Cosse stated that before she was
notified, she was unaware of the sexual abuse and never had any concern that her
grandchildren were in danger with Defendant. Ms. Cosse spoke with Defendant
within twenty-four hours after kicking him out, and he told her that he was on his
way to Mexico. Pike County Sheriff’s Office was notified about the abuse, and
Defendant eventually turned himself into the Sheriff’s office. Ms. Cosse identified
Defendant in court as the man she began a relationship with in 2004.
Joaunna Coon
Mrs. Coon—A.C.’s mother and J.T.’s aunt—testified that she was living in
Pike County, Mississippi, in 2005 and 2006, which was about 15 minutes from
McComb. Her mother, Ms. Cosse, lived with Defendant about twenty minutes
from her residence. Mrs. Coon explained that she would drop A.C. off to Ms.
Cosse’s residence a couple times throughout the week while she worked. In July
of 2006, Mrs. Coon was watching both A.C. and J.T., along with other children.
Mrs. Coon testified that while she was watching the children, her other daughter
came into the room and told her that A.C. was on top of J.T. moving up and down.
This behavior alarmed her, so she asked A.C. where she learned it from. A.C. said
that Defendant did that to her.
After Mrs. Coon finished speaking with A.C., she called her husband and
sister, notified the Sheriff’s office and brought A.C. to the hospital. She said that
Investigator Davis Haygood (“Inv. Haygood”) was assigned to her case and came
to the hospital to interview A.C. Defendant was later arrested and charged for
molesting A.C. Defendant pled guilty and served ten years in prison. Mrs. Coon
3 testified that Defendant did not plead guilty nor was he punished for any crime in
regards to J.T. at that time. Mrs. Coon identified Defendant in the courtroom as
the man Ms. Cosse was living with in McComb, Mississippi.
Investigator Davis Haygood
On July 2, 2006, Inv. Haygood was the chief investigator for Pike County
Sheriff’s Office in Mississippi. He said that he received a report from his patrol
officer that stated that Mrs. Coon believed Defendant had sexually assaulted A.C.
At that time, A.C. was four years old. Inv. Haygood attested that he was
concerned because victims of sexual abuse at such a young age are usually unable
to clearly articulate what happened to them. Nonetheless, Inv. Haygood set up an
interview for A.C. at the Children’s Advocacy Center (“CAC”). He explained that
when a child suffered any type of abuse, the Sheriff’s office protocol was to set up
an interview with the CAC because CAC interviewers are trained to deal with
victims that are children. Inv. Haygood testified that during the interview A.C.
was unable to disclose specifics of the offense, which was common among victims
her age. He said that based on the interview alone, A.C. did not disclose enough
information for the Sheriff’s office to make an arrest at that time.
Three days later, Mrs. Tiser, J.T.’s mother, went to the Sheriff’s office and
filed a report stating that Defendant molested J.T. Inv. Haygood said that he
followed the same protocol that he had with A.C. and set up an interview for J.T. at
the CAC. The interview took place on July 6, 2004. Inv. Haygood said that he had
the same concern regarding J.T.’s ability to communicate with the CAC because
J.T. was younger than A.C. He confirmed that J.T. talked about Defendant and
when asked where Defendant put his penis, J.T. pointed to his head and his butt.
Inv. Haygood said that during the interview J.T. showed signs of a child who had
4 been sexually abused. The State introduced the video recording of J.T.’s
interview.
Inv. Haygood testified that after the interviews with A.C. and J.T., he still
did not have enough information to pursue charges against Defendant, so he
continued his investigation. He contacted Defendant on the telephone and made
him aware that there were allegations of sexual abuse made against him and
advised Defendant to come into the Sheriff’s office. Defendant told Inv. Haygood
that he was on his way to Mexico to visit family. Inv. Haygood implored
Defendant to come into the Sheriff’s office to give a statement, and Defendant
complied.
Inv. Haygood testified that Defendant confirmed he touched A.C. When
asked why he touched her, Defendant stated that he had never touched a virgin
before. Defendant further stated that he would often get an erection when A.C.
would sit on his lap. In regards to J.T., Defendant said that J.T. burst in the
bathroom while Defendant was getting out of the shower, and his penis “landed in
J.T.’s mouth.” Inv. Haygood asked Defendant if the previously mentioned
occurrences happened with other children in the household, and Defendant
responded yes. Inv. Haygood testified that charges were not brought against
Defendant for the sexual abuse of J.T. J.T. spent time with Defendant in both
Mississippi and Louisiana, and due to his age and lack of communication they
could not determine where J.T.’s abuse had occurred. In contrast, Inv. Haygood
said that because A.C. had lived in Mississippi her whole life, he did not have an
issue bringing charges against Defendant for the abuse she sustained. The State
introduced Defendant’s audio recorded statement with Inv. Haygood into evidence
and played it for the jury.
5 A.C.
At the time of trial, A.C. was twenty-two years old. A.C. is J.T.’s cousin
and Mrs. Coon’s daughter. A.C. testified that when she was around three or four
years old, her grandmother, Ms. Cosse, got a new boyfriend4. A.C. used to be
dropped off at Ms. Cosse’s residence many times while Defendant was present.
Around four to five years old, A.C. said that she was molested by Defendant. She
said that the molestation occurred at least four to five times that she could recall.
A.C. testified that Defendant started off tongue kissing her and then it
progressed. After Defendant became more comfortable, he rubbed on A.C.’s chest
and vagina. She stated that while in bed, Defendant would pull her underwear to
the side and continue to rub her. On one occasion, Defendant took his penis and
rubbed it up and down A.C.’s vagina. She said that Defendant told her that what
he was doing to her was okay, and it was their secret. A.C. confirmed that
Defendant had, indeed, masturbated and ejaculated in front of her. She said that
the sexual abuse occurred when Ms. Cosse was on the porch smoking or drinking
coffee, or, if the television was really loud and Ms. Cosse was asleep, Defendant
would molest her while all three of them were in the bed. A.C. identified
Defendant in the courtroom as the new husband that was at Ms. Cosse’s residence
when she would visit.
Amy Tiser
Mrs. Tiser is J.T.’s mother and Ms. Cosse’s daughter. She testified that in
2004, J.T. stayed with Ms. Cosse and Defendant at the Delta Hotel a few times
each week. She explained that before Hurricane Katrina struck in 2005, she and
her family evacuated to McComb, Mississippi. After Hurricane Katrina, Mrs.
4 Ms. Cosse and Defendant were married sometime after 2005.
6 Tiser and her household relocated to Vidalia, Louisiana. Mrs. Tiser said that
Defendant and Ms. Cosse remained in McComb, which was about an hour and a
half from where she lived in Vidalia. Despite the distance, Mrs. Tiser and her
children visited Ms. Cosse a few times a week.
In July of 2006, Mrs. Tiser testified that she dropped J.T. off to her sister,
Mrs. Coon. Later that day, Mrs. Coon called her and told her to come back to her
house immediately. Once Mrs. Tiser arrived, Mrs. Coon told her that the older
children witnessed A.C. and J.T. playing inappropriately. This behavior caused
Mrs. Tiser to question J.T. Mrs. Tiser asked J.T. did anyone touch his penis and
J.T. said no, but that Defendant made J.T. touch his penis with his mouth or his
hands before and that white stuff came out. J.T. communicated that this incident
happened by the piano. Mrs. Tiser attested that she knew J.T. was speaking of the
piano that was located at the Delta Hotel, but she cut off questioning and contacted
the Sheriff’s office.
Mrs. Tiser testified that Defendant pled guilty and admitted to sexually
assaulting A.C. Defendant was released from prison in August of 2016. In March
2017, Ms. Cosse was in the hospital and Defendant showed up, which resulted in
his arrest for violation of his parole. Mrs. Tiser told J.T. that Defendant was out of
jail, and J.T. told her that he remembered everything and that he needed to
immediately speak to someone in Plaquemines Parish and in Pike County. Mrs.
Tiser contacted the Sheriff’s Offices in both locations.
Lieutenant Detective Holly Hardin
Lieutenant Detective Holly Hardin (“Det. Hardin”) testified that, at the time
of her testimony, she was the lieutenant over the Criminal Investigation Bureau at
the Plaquemines Parish Sheriff’s Office. She explained that when she was
7 assigned to J.T.’s case in March of 2017, at that time she was a sergeant over the
Special Victims Unit. J.T. was fourteen years old when she set up a forensic
interview for him, and he was three years old when the abuse occurred. During the
interview, J.T. confirmed that when he was three years old, Defendant sexually
abused him. Following the interview, Det. Hardin referred J.T. to Dr. Mehta for a
medical examination. Based on that interview, on March 21, 2017, Det. Hardin
obtained an arrest warrant for Defendant for aggravated rape.
J.T.
At the time of his testimony, J.T. was twenty-two years old. He testified that
he is from Port Sulphur, Louisiana, which is in Plaquemines Parish. He said that
his family evacuated from Port Sulphur to Vidalia, Louisiana, during Hurricane
Katrina. After spending about a year in Vidalia, they moved to McComb,
Mississippi. In 2004, when he lived in Port Sulphur, Ms. Cosse, his grandmother,
lived minutes away from him. J.T. said that during that time Defendant lived with
Ms. Cosse at the Delta Hotel. He identified Defendant in the courtroom as the man
who lived with Ms. Cosse at the time the abuse occurred.
J.T. visited Ms. Cosse a couple times a week, and it was not uncommon for
him to sleep there overnight. When J.T. visited Ms. Cosse, Defendant was present
and there were many times he was left alone with Defendant. J.T. testified that he
was sexually molested and raped by Defendant more than once. J.T. described the
room where he was assaulted as a giant white room with multiple windows. He
then proceeded to describe how he was molested by Defendant:
I was play—playing the piano as the curious child as I was, and Joseph came over to play on the piano with me. He was teaching me how to play. And then, as we were playing, my hands were following along with his, he proceeds to take my hand and his other hand and unzip his pants and take my hand and put it on his penis. And, as he’s
8 doing that, he's stroking himself; and then he grabs me by the back of the head and puts my mouth on it and -- and then sits there and rapes me.
J.T. testified that when Defendant pushed his head down, Defendant’s penis
went inside of his mouth and remained there for roughly thirty seconds. He said
that this was the only time Defendant molested him in Port Sulphur and that there
were other incidents that happened in Mississippi. J.T. stated that Defendant told
him not to tell anyone what happened and that if he did the cops would come get
him and his family. J.T. described the rape that occurred in Mississippi as follows:
I was laying down on my stomach with my hands -- my face on my hands, and I’m watching Tom and Jerry in front of TV. I’m in the living room, and he was in the kitchen behind me as he was watching me. And then the next thing I know [the defendant] jumps on top of me, pulls my pants down, puts [his] penis in me while [he’s] holding me down by the back of the neck as I’m screaming; and then I blacked out.
J.T. explained that after he told his mom about the sexual abuse when he was four,
he never discussed it with her again.
Dr. Neha Mehta
Dr. Neha Mehta (“Dr. Mehta”), who was accepted by the district court as an
expert in the field of child abuse pediatrics, conducted a medical examination of
J.T. on April 24, 2017. At the time of the examination, J.T. was fifteen years old.
Dr. Mehta testified that part of the examination requires that the patient provide a
patient history, which consists of the patient describing any physical or sexual
abuse they may have experienced. Dr. Mehta further testified that J.T. described
both oral and anal sexual abuse. She explained that J.T. made it clear that the
abuse occurred in multiple locations. Based on the information J.T. provided to
her regarding his sexual abuse, she did not expect to see any signs of physical
trauma during his examination due to the passage of time. She said that once the
9 time period has passed to collect trace evidence, which is usually seventy-two
hours, she expected to see a normal examination. Dr. Mehta concluded from her
examination that J.T. had been sexually abused. The State introduced Dr. Mehta’s
medical report that was generated from her visit with J.T. along with a video
recording of her interview with J.T., which it played for the jury.
Trial was concluded on October 17, 2024 and the jury found Defendant
guilty of aggravated rape. At Defendant’s sentencing hearing, he filed a motion for
judgment of acquittal, which the district court denied. Defendant objected to the
denial of his motion. The district court sentenced Defendant to life imprisonment
at hard labor without benefit of probation, parole, or suspension of sentence. This
timely appeal followed.
ERRORS PATENT
An appellate court must review criminal appeal records for the existence of a
patent error. See La. C.Cr.P. art. 920(2).5 A careful examination of the record
reveals no errors patent.
DISCUSSION
In his sole assignment of error, Defendant argues that the State violated
Defendant’s right to due process by prosecuting him based on facts that were
known to J.T.’s family and law enforcement in 2006. Additionally, Defendant
contends that the trial evidence presented consists of testimony from the twenty-
two-year-old victim recalling an incident that occurred when he was three years
5 Louisiana Code of Criminal procedure article 920 provides:
The following matters and no others shall be considered on appeal: (1) An error designated in the assignment of errors; and (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.
10 old. Although Defendant frames his argument as a due process challenge based on
the State’s delay in prosecution, his argument raises the sufficiency of the evidence
supporting his conviction. Because a finding of insufficient evidence would
warrant an acquittal, we will first address whether the evidence, viewed in light
most favorable to the prosecution, was sufficient to support the conviction.
Sufficiency of evidence
“When reviewing the sufficiency of the evidence to support a conviction,
Louisiana appellate courts are controlled by the standard enunciated in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).” State v. Lamizana
21-0409, p. 4 (La. App. 4 Cir. 3/23/22), 366 So.3d 416, 419 (quoting State v.
Brown, 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18). “Under this standard, the
appellate court ‘must determine that the evidence, 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 had been proved beyond a reasonable doubt.’” Id.
(internal citation omitted). “The determination of credibility is a question of fact
within the sound discretion of the trier of fact and will not be disturbed unless
clearly contrary to the evidence.” State v. Barbain, 15-0404 at p. 8 (La. App. 4
Cir. 11/4/15), 179 So.3d 770, 776 (quoting State v. Brown, 12–0853, p. 2 (La. App.
4 Cir. 2/6/13), 109 So.3d 966, 968). “It is not the function of the appellate court to
assess the credibility of witnesses or reweigh the evidence.” Id. at p. 8, 179 So.3d
at 776-77 (quoting State v. Richards, 11–0349, p. 9 (La. App. 4 Cir. 12/1/11), 78
So.3d 864, 869). “In the absence of internal contradiction or an irreconcilable
conflict with the physical evidence, a single witness' testimony, if believed by the
fact finder, is sufficient to support a factual conclusion.” Id. at p. 8, 179 So.3d at
11 777 (citing State v. Rapp, 14–0633, pp. 6–7 (La. App. 4 Cir. 2/18/15), 161 So.3d
103, 108).
With these precepts in mind, we now turn to the merits of this case.
Aggravated rape
La. R.S. 14:42 provides in pertinent part that:
A. First degree rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: *** (4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
“In cases involving 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.” Barbain, 15-0404, p. 10 (La. App. 4 Cir. 11/4/15), 179 So.3d 770,
778 (citations omitted).
As previously mentioned, Defendant argues that J.T.’s testimony was
insufficient because it could not be effectively tested due to the approximately
nineteen-year delay between the offense and his testimony at trial. Conversely, the
State urges that the evidence in the instant case, specifically the testimony of Dr.
Mehta, demonstrates a proper justification for the delay in prosecution. We agree.
At trial, the district court heard Dr. Mehta’s testimony, which explained that
it is common for victims of child sexual abuse to delay disclosure of their abuse.
The following colloquy occurred between the State and Dr. Mehta:
Q: And Doctor is it common for victims of child abuse to delay their disclosure that they have been abused?
12 A: Yes. That is the norm. Most children do not disclose in a timely fashion that they’ve been sexually abused.
Q: And can you explain for the members of the jury why is that? Why is it that children don’t immediately report instances of child sexual abuse?
A: There’s a number of reasons that we feel that children don’t come forward with information. Sometimes when they’re very young when something happens, they don’t necessarily understand what it means. They might think that it’s some kind of a game, or they – they don’t understand that it’s sexual in nature. They just think it’s a weird bad thing that happened. As they get older, sometimes there are external reasons. That means someone from the outside, someone saying “You know, if you say something, I’ll hurt you” or “I’ll hurt your dog” or “you’ll be the one who gets in trouble.” Most commonly the reasons children don’t disclose sexual abuse is it – it’s really something internal. It’s what they are telling themselves, which is often things related to shame, embarrassment about what’s happened, feeling like “It’s my fault that this happened to me. Something’s wrong with me that this is happening to me,” disgust for being able to -- to put into words the types of things that happened, sometimes not even having a good vocabulary to really explain what it is that happened, not really understanding it and being too embarrassed to say that.
In State v. Hidalgo, the defendant was charged and convicted of aggravated
rape. 23-375, p. 18 (La. App. 5 Cir. 5/8/24), 389 So.3d 231, 244. The defendant
argued that the sexual abuse was not reported until nearly ten years later and that
corroboration is needed in such a case. Id. The appellate court concluded that “an
explanation of why delayed reporting occurs was provided in the matter . . . Nurse
Troy explained that, from her experience, most children do not want to talk about
the sexual abuse they have experienced . . . [and] the jury made a credibility
determination.” Id. Analogous to Hidalgo, here, Dr. Mehta provided an
explanation of why delayed reporting occurs and the jury made a credibility
determination.
Moreover, in support of J.T.’s testimony—who was twenty-two-years-old at
the time of trial—the State introduced a video recording of J.T. that was made
13 when he was fifteen years old, wherein he recounted the same events that are the
subject of this prosecution. The district court also heard the testimony of A.C.,
whom Defendant had previously been convicted of abusing. In support of A.C.’s
testimony, the State introduced an audio-recorded statement in which Defendant
admitted to sexually abusing A.C. “As the trier of fact, the jury was free to accept
or reject, in whole or in part, the testimony of any witness.” State v. Freeman, 17-
0417, p. 7 (La. App. 4 Cir. 12/29/17), 2017 WL 6629156 Unpub., at *4 (quoting
State v. Robertson, 95-0645, p. 5, (La. App. 1 Cir. 4/4/96), 672 So.2d 391, 395.
Based on a review of the totality of the evidence presented by the State, we find the
evidence sufficient to prove beyond a reasonable doubt that Defendant committed
aggravated rape.
Assignment of error No.1 – Right to due process
Defendant contends that the State violated his due process rights by delaying
prosecution for approximately nineteen years after the offense occurred.
Specifically, Defendant argues that the facts as outlined in this prosecution were
known to J.T. and his family in 2006, and that this delay in prosecution
unnecessarily and unfairly hindered his ability to prepare a defense. Defendant
cites a dissent in a writ opinion, State v. Smith, to support his proposition that the
lengthy delay of time between the offense and prosecution violated his right to due
process. 01-1027, pp. 3-4 (La. App. 1 Cir. 2/15/02), 809 So.2d 556, 559
(Downing, J., concurring in part and dissenting in part).
In Smith, the defendant was indicted for the aggravated rape of a juvenile
that took place twenty-one years prior to the indictment. The defendant filed a
motion to quash the indictment in which he argued that he was denied due process
of law based on the twenty-one-year delay. He further argued that defense counsel
14 would be unable to prepare a defense because of the lengthy delay. The district
court denied the defendant’s motion to quash the indictment, and he sought
supervisory review of the district court’s judgment in the court of appeal. The
Smith Court majority held that “[defendant] made no attempt to introduce any
evidence at the hearing or offer any factual allegations about how he has been
actually prejudiced by the delay.” Smith, 01-1027, p. 6, 809 So.2d at 560
(Downing, J., concurring in part and dissenting in part). The Court further stated
that “[defendant] speculate[d] . . . that his attorney would not be able to test the
victim’s memory as to the surrounding events, such as clothing worn, time of day,
exact location . . . and other factors [defendant] thinks will impact on the victim’s
credibility.” Id. at p. 6, 809 So.2d at 561. The majority found no merit to the
defendant’s claim. To the contrary, the dissenting judge reasoned that in the
absence of corroborating evidence, “a passage of time of such length that an
accused is prevented from preparing a defense should be sufficient grounds to hold
that due process is violated.” Id. at p. 1, 809 So.2d at 566. Although Defendant
relies on the dissenting opinion in Smith, the majority rejected the notion that a
lengthy pre-indictment delay alone establishes a due-process violation.
Additionally, in State v. Hughes, the defendant was charged for the
molestation of a juvenile. 94-1364, p. 1 (La. App. 4 Cir. 12/28/94), 648 So.2d 490,
491. The State filed a bill of information, which charged the defendant
approximately seven years after the offense occurred. The defendant filed a
motion to quash the bill of information stating that he was denied his right to due
process because of the delay to prosecute. This Court held that the defendant’s
argument had no merit. Id. at p. 6, 648 So.2d at 493. The Hughes Court explained
that “to prove a due process violation that requires dismissal of an indictment
15 because of pre-indictment delay, the defendant must show that the State
deliberately delayed to gain a tactical advantage and the delay caused actual and
substantial prejudice to the defendant. Id. This Court concluded that “defendant
does not allege specific, actual prejudice, rather merely alleges general prejudice in
preparation of his defense.” Id.
Finally, in State v. Brown the defendant was charged and convicted for first
degree murder. 16-0998 (La. 1/28/22), 347 So.3d 745. On direct appeal, the
defendant argued that the district court erred in denying his motion to quash the
indictment because the delay between the offense and the indictment violated his
right to due process. The defendant alleged that the delay hampered defense
counsel’s ability to conduct a meaningful investigation or litigation. The Supreme
Court explained that La. C.Cr.P. art. 5716 does not place time limitations on the
prosecution for a crime punishable by death or life imprisonment. Brown, 16-
0998, p. 63, 347 So.3d at 797. That Court further stated “that pre-indictment
delays may violate due process, and that ‘[t]he proper approach in determining
whether an accused has been denied due process of law through a pre[-]indictment
or pre-arrest delay is to measure the government’s justifications for the delay
against the degree of prejudice suffered by the accused.’” Id. at pp. 63-64, 347
So.3d at 797 (quoting State v. Schrader, 518 So.2d 1024, 1028 (La. 1988)).
The Brown Court held that the defendant failed to show any specific
prejudice and “found the [S]tate’s reasons for delay legitimate in light of several
former prosecutors describing the circumstances causing the delay (such as the 6 Louisiana Code of Criminal Procedure art. 571 provides:
There is no time limitation upon the institution of prosecution for any crime for which the punishment may be death or life imprisonment or for the crime of forcible or second degree rape (R.S. 14:42.1) or molestation of a juvenile or a person with a physical or mental disability (R.S. 14:81.2).
16 complex, sprawling nature of the case involving voluminous DNA evidence and
the fact that all defendants were serving life sentences).” Brown, 16-0998, p. 64,
347 So.3d at 797. The Supreme Court concluded that “whatever prejudice may
have been suffered appears to be outweighed by the state’s justifications . . . [t]he
[district] court did not err in denying the motion to quash the indictment.” Id. at p.
65, 347 So.3d at 797.
In the instant case, unlike the defendants in Smith, Hughes and Brown,
Defendant did not file a motion to quash the indictment. Moreover, Defendant
failed to introduce any evidence or offer any factual allegations about how he may
have suffered actual prejudice at the district court. Rather, Defendant alleges
general prejudice in preparation of his defense, which is merely speculative and
does not demonstrate actual prejudice. General allegations of prejudice in the
preparation of the defense and allegations of “potential” prejudice are not sufficient
to support a due process violation based on a lengthy pre-indictment delay alone.
Smith, 01-1027, p. 6, 809 So.2d at 561. Applying these principles, this Court finds
that regardless of the State’s justification for the delay in prosecution, Defendant
has failed to meet his burden of establishing prejudice from the delay. This
assignment of error is unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm Defendant’s conviction and sentence
for aggravated rape.
AFFIRMED