STATE OF LOUISIANA
COURT OF APPEAL
j!o FIRST CIRCUIT
2023 KA 0993
VERSUS
JUDE EVERETTE BOUDREAUX
JUDGMENT RENDERED: APR 19 2024
Appealed from the Thirty -Second Judicial District Court Parish of Terrebonne • State of Louisiana Docket Number 821881 • Division A
The Honorable Timothy C. Ellender, Jr., Presiding Judge
Jane L. Beebe COUNSEL FOR APPELLANT Louisiana Appellate Project DEFENDANT --- Jude Everette Addis, Louisiana Boudreaux
Joseph L. Waitz, Jr. COUNSEL, FOR APPELLEE District Attorney State of Louisiana Joseph S. Soignet Special Prosecutor
Gary Williams Assistant District Attorney Houma, Louisiana
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ. WELCH, I
The defendant, Jude Boudreaux, was charged by bill of information with one
count of molestation of a juvenile ( count one), a violation of La. R. S. 14: 81. 2, one
count of sexual battery ( count two), a violation of La. R.S. 14: 43. 1, one count of
aggravated crime against nature ( count three), a violation of La. R.S. 14: 89. 1( A)(2),
and one count of felony carnal knowledge of a juvenile ( count four), a violation of
La. R.S. 14: 80( A)( 1). He pled not guilty and, following a jury trial, was found guilty
as charged by unanimous verdict on all four counts. The trial court denied the
defendant' s motion for new trial and motion for post -verdict judgment of acquittal,
and sentenced the defendant to fifteen years imprisonment at hard labor on count
one, six years imprisonment at hard labor on count two, fifteen years imprisonment
at hard labor on count three, and six years imprisonment at hard labor on count four,
with each sentence to be served consecutively.' The trial court denied the
defendant' s motion to reconsider sentence. The defendant now appeals, challenging
the admission of hearsay evidence, the sufficiency of the evidence, the denial of his
motion for mistrial, and the excessiveness of the sentences. For the following
reasons, we affirm the convictions and sentences.
FACTS
On September 17, 2020, fourteen -year- old J.H., the victim in this case,
returned from school to the home she shared with her mother, N.S., and her
stepfather, the defendant, in Houma, Louisiana.2 Later that evening, N.S. received
an anonymous text message advising her that J. H. and the defendant exchanged
1 The record reflects that the trial court failed to state that the sentence was to be served without benefit of parole, probation, or suspension of sentence on count two, as statutorily mandated. See La. R. S. 14: 43. 1( C)( 1). However, when a trial court does not mention the restriction of benefits provided in the sentencing statute, such conditions are self a - ctivating pursuant to La. R. S. 15: 301. 1( A). Accordingly, we need not take corrective action. See State v. Lee, 2023- 0079 ( La. App. 1st Cir. 6/ 2/ 23), 2023 WL 3861763, * 1 n. 1 ( unpublished).
2 Because these charges involve sex offenses, we reference the victim and her family members by their initials. See La. R. S. 46: 1844( W).
2 sexually explicit messages and photographs. N.S. called the police, after which J. H.
disclosed that she and the defendant engaged in multiple sexual acts. After the
defendant confessed in his interview with police and provided a DNA sample, he
was subsequently arrested.'
SUFFICIENCY OF THE EVIDENCE
In his second assignment of error, the defendant argues the trial court erred in
denying his motion for new trial and motion for post -verdict judgment of acquittal
because the evidence at trial was insufficient to support his conviction on each of
counts one through four.4
A conviction based on insufficient evidence cannot stand, as it violates due
process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review
for sufficiency of the evidence to support a conviction is whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found that the State proved the essential elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L.Ed.2d 560 ( 1979); State v. Labee, 2022- 0995 ( La. App. 1 st Cir. 2124123), 361
So. 3d 1072, 1076; see also La. C. O.P. art. 821( B).
When a conviction is based on both direct and circumstantial evidence, the
reviewing court must resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When the direct evidence is
3 The defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 ( 1966), prior to giving a statement.
a When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d 731, 734 ( La. 1992); State v. Calloway, 2018- 1396 ( La. App. 1st Cir. 4/ 12/ 19), 276 So. 3d 133, 141, writ denied, 2019- 00869 ( La. 1/ 20/ 21), 308 So. 3d 1164. Further, we note that the question of the sufficiency of the evidence is properly raised by a motion for post - verdict judgment of acquittal. See La.C. Cr.P. art. 821. Appellate courts may review the grant or denial of a motion for new trial only for errors of law. See La. C. Cr.P. art. 858. Accordingly, the denial of the defendant' s motion for new trial, in part based on La. C. Cr. P. art. 851( 13)( 1), is not subject to review on appeal. State v. Anthony, 2023- 0117 ( La. App. 1 st Cir. 1113123), So. 3d 2023 WL 7270882, * 1 n. 3.
3 thus viewed, the facts established by the direct evidence and the facts reasonably
inferred from the circumstantial evidence must be sufficient for a rational juror to
conclude beyond a reasonable doubt that the defendant was guilty of every essential
element of the crime. State v. Coleman, 2021- 0870 ( La. App. 1st Cir. 4/ 8/ 22), 342
So. 3d 7, 12, writ denied, 2022- 00759 ( La. 11/ 21123), 373 So. 3d 460. When a case
involves circumstantial evidence and the jury reasonably rejects the hypothesis of
innocence presented by the defense, that hypothesis falls, and the defendant is guilty
unless there is another hypothesis that raises a reasonable doubt. State v. Bessie,
2021- 1117 ( La. App. 1st Cir. 4/ 8/ 22), 342 So. 3d 17, 22, writ denied, 2022- 00846
La. 9/ 20122), 346 So.3d 802.
J. H. testified at trial that at the time of the alleged offenses, she lived with her
mother, N.S., and her stepfather, the defendant. J. H. stated that she and the
defendant communicated on Snapchat, where she sent him pictures of her breasts
and vagina, and the defendant sent her a picture of his penis. These photographs
were also shared in a group conversation with an unknown person, who convinced
J. H. to perform sexual acts with the defendant.' J. H. also testified that the
anonymous person asked her questions about how the defendant performed oral sex
on her.
One day after N.S. called the police, she brought J. H. to the Children' s
Advocacy Center ( CAC) for an interview. J. H.' s CAC statement was largely
consistent with her trial testimony. She explained that she sent nude pictures and
videos of herself to the defendant, after which the defendant sent her a picture of his
penis. She affirmatively stated that on two separate occasions, while her mother was
away from home, she performed oral sex on the defendant. She also stated that the
defendant touched her breasts and vagina, as well as performed oral sex on her.
It is unclear from the record whether the anonymous individual in the group conversation is the same anonymous individual who initially contacted N.S.
4 Detective Monica Odom with the Terrebonne Parish Sheriff' s Office testified
that at around 11: 00 p.m. on September 17, 2020, she responded to J. H.' s father' s
house, where she spoke with N.S. and J. H. J. H. told Detective Odom that for
approximately two weeks prior, she and the defendant exchanged sexual messages
and photographs, as well as engaged in sexual acts. Detective Odom testified that
she reviewed J.H.' s phone, after which J. H. confirmed that some photographs
depicted her breasts, and N. S. identified the defendant' s penis in one of the
photographs. Detective Odom further testified that J. H. stated that when she
returned home from school that day, the defendant touched her breasts and vagina,
and she performed oral sex on him. J. H. further stated that she performed oral sex
on the defendant on a prior date. Thereafter, Detective Odom instructed N.S. to
bring J.H. to Children' s Hospital, where a sexual assault kit was performed. Swabs
from J. H.' s breasts, neck, and ear were collected and then submitted for DNA
testing.
Stacy Williams, an expert in forensic DNA analysis, analyzed the DNA
evidence collected in this case. Williams testified that swabs from J. H.' s breasts
produced a DNA profile consistent with a mixture of two people. Additionally,
Williams performed a Y- STR analysis wherein a sample is tested for the presence
of paternal DNA specific to one individual. The Y-STR analysis of the breast swabs
produced a partial Y- STR DNA profile consistent with the defendant' s paternal line.
Accordingly, Williams testified that the defendant and all male individuals within
his biological paternal lineage could not be excluded as the contributor for the Y-
STR DNA profile found on J.H.' s breasts.
The defendant provided an oral statement to police, which was presented to
the jury. In his statement, the defendant stated his date of birth is July 25, 1974, and
he was forty-six years old at the time of the interview. He further stated he was
injured in a work-related accident and stayed at home most of the time. Within the
5 two weeks immediately preceding his arrest, he received photographs of J.H.' s
breasts and vagina, as well as a video of J.H. performing a sexual act. Additionally,
he admitted to sending a photograph of his penis; however, he stated he did not
remember whether he sent it to J.H. or the anonymous person in the group chat.
According to the defendant, J. H. repeatedly talked to him about sex and messaged
him asking to perform oral sex on him. He further stated he viewed J.H. as having
the body of a woman. While he initially denied participating in sexual activities with
J. H., he eventually confessed that J. H. performed oral sex on him twice but insisted
she initiated each incident. He further admitted he penetrated her vagina with his
fingers but maintained she grabbed his hand and led him to her vagina.
On appeal, the defendant argues the State failed to prove beyond a reasonable
doubt that any crime occurred. Specifically, he contends J.H. initiated all sexual
activities, and he simply refused her sexual advances. However, the verdicts
rendered in this case indicate the jury found J.H. credible and rejected the
defendant' s hypothesis of innocence. We cannot say the jury was unreasonable in
doing so.
In the absence of internal contradiction or irreconcilable conflict with the
physical evidence, one witness' s testimony, if believed by the trier of fact, is
sufficient to support a factual conclusion. State v. Brown, 2020- 0150 (La. App. 1 st
Cir. 2/ 19/ 21), 2021 WL 650816, * 10 ( unpublished), writ denied, 2021- 00458 ( La.
6/ 1/ 21), 316 So. 3d 835. Further, the testimony of the victim alone is sufficient to
prove the elements of the offense. It is the fact finder who weighs the credibility of
the witnesses, and this court will generally not second- guess those determinations.
Id
Count One: Molestation ofa Juvenile
Molestation of a juvenile is defined, in pertinent part, as the commission by
anyone over the age of seventeen of any lewd or lascivious act upon the person or in
31 the presence of any child under the age of seventeen, where there is an age difference
of greater than two years between the two persons, with the intention of arousing or
gratifying the sexual desires of either person, by the use of force, violence, duress,
menace, psychological intimidation, threat of great bodily harm, or by the use of
influence by virtue of a position of control or supervision over the juvenile. La. R.S.
14: 81. 2( A)( 1). The word " lewd" means lustful or indecent and signifies that form
of immorality that relates to sexual impurity carried on in a wanton manner. It is
identified with obscenity and measured by community norms for morality. The
word " lascivious" means tending to incite lust, indecent, obscene, and tending to
deprave the morals in respect to sexual relations. Brown, 2021 WL 650816 at * 4.
Molestation of a juvenile is a specific intent crime. Brown, 2021 WL 650816
at * 5. Specific criminal intent is that state of mind that exists when the circumstances
indicate that the offender actively desired the prescribed criminal consequences to
follow his act or failure to act. La. R.S. 14: 10( 1). Specific intent need not be proven
as a fact. It maybe inferred from the circumstances of the transaction and the actions
of the defendant. Specific intent is an ultimate legal conclusion to be resolved by
the fact finder. Brown, 2021 WL 650816 at * 5.
The testimony adduced at trial established that at the time of the offenses, the
defendant was forty-six years old, and J. H. was fourteen years old. The defendant,
who met J.H. when she was eight years old and subsequently became her stepfather,
had continuous influence, control, and supervision over her. The defendant was
home with J.H. every day while N.S. was at work, as the defendant was unemployed
due to a work-related injury. Further, J. H.' s trial testimony and CAC statement
established that the defendant and J.H. exchanged sexually explicit messages and
photographs, as well as exposed their genitals to each other. J. H. stated that on one
occasion, she exposed her breasts to the defendant, who then exposed his penis to
her. Moreover, in his statement to police, the defendant admitted to receiving
11 photographs and videos of J.H.' s genitals, as well as sending a photograph of his
penis to the group chat, where J. H. could view it. Although the defendant stated he
could not remember whether he sent the photograph directly to J.H., J. H. testified
that he did so. Finally, the defendant described J. H.' s body as womanly, which
suggests he viewed her in a lustful manner. Thus, a rational jury could have
concluded the defendant was guilty of molestation of a juvenile. See Brown, 2021
WL 650816 at * 10- 11.
Count Two: Sexual Battery
Sexual battery is defined, in pertinent part, as the intentional touching of the
anus or 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 clothing, when the victim has not yet attained
fifteen years of age and is at least three years younger than the offender. La. R.S.
14: 43. 1( A)(2). Sexual battery is a general intent crime. Thus, the only intent
necessary to sustain a conviction is established by the very doing of the proscribed
act. See La. R.S. 14: 11; Brown, 2021 VVI, 650816 at * 5. General criminal intent is
present whenever there is specific intent, and also when the circumstances indicate
that the offender, in the ordinary course of human experience, must have adverted
to the prescribed criminal consequences as reasonably certain to result from his act
or failure to act. La. R.S. 14: 10( 2).
In J. H.' s CAC statement, she recounted how the defendant touched her vagina
with his hands. The defendant also admitted to police that he touched J. H.' s vagina
with his hands multiple times and, at one point, digitally penetrated her.
Accordingly, a rational jury could have found the evidence proved beyond a
reasonable doubt the defendant committed sexual battery upon J. H. See State v. Lilly, 2012- 0008 ( La. App. 1st Cir, 9121112), 111 So. 3d 45, 63, writ denied, 2012-
2277 ( La. 5131/ 13), 118 So. 3d 386.
Count Three: Azeravated Crime A ainst Nature
Aggravated crime against nature is defined, in pertinent part, as the
commission of any enumerated prohibited act with a person who is under eighteen
years of age and who is known to the offender to be related to the offender as a
biological, step, or adoptive" child. La. R.S. 14: 89. 1( A)(2)( a). Prohibited acts
include sexual battery, carnal knowledge of a juvenile, molestation of a juvenile, or
a] ny 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." La. R.S. 14: 89. 1 ( A)( 2)( b)( i) and ( ii). Aggravated
crime against nature is a general intent crime. Thus, the only intent necessary to
sustain a conviction is established by the very doing of the proscribed act. See La.
R.S. 14: 11; Brown, 2021 WL 650816 at * 5. Consent shall not be a defense to
prosecution for a violation of this provision. La. R.S. 14: 89. 1 ( A)( 2)( c).
Herein, there is no dispute regarding the relationship between J.H. and the
defendant, In J.H.' s CAC statement, she stated the defendant touched her breasts,
and DNA consistent with the defendant' s was found on her breasts. Thus, while the
defendant denied touching J. H.' s breasts, the evidence clearly established that he
engaged in the prohibited touching of her breasts. As provided in the statute, consent
is not a defense to the crime of aggravated crime against nature. La. R. S.
14: 89. 1 ( A)(2)( c). Accordingly, the jury could have rationally concluded that the
defendant, with full knowledge that J. H. was his fourteen -year- old stepdaughter,
committed aggravated crime against nature.
Count Four: Felony Carnal Knowledge ofa Juvenile
Felony carnal knowledge of a juvenile is committed when "[ a] person who is
seventeen years of age or older has sexual intercourse, with consent, with a person
0X who is thirteen years of age or older but less than seventeen years of age ... when
the difference between the age of the victim and the age of the offender is four years
or greater[.]" La. R.S. 14: 80( A)( 1). Sexual intercourse includes anal, oral, or
vaginal sexual intercourse. La. R.S. 14: 80( B). Penetration, however slight, is
sufficient to complete the crime. La. R.S. 14: 80( 0). Felony carnal knowledge of a
juvenile is a general intent crime. Thus, the only intent necessary to sustain a
conviction is established by the very doing of the proscribed act. See La. R.S. 14: 11;
State v. Granter, 99-3511 ( La. 716! 00), 765 So. 2d 998, 1000.
J.H.' s CAC statement established that J.H. performed oral sex on the
defendant, and he performed oral sex on her. Moreover, in the defendant' s statement
to police, he admitted that J. H. performed oral sex on him. Accordingly, a rational
jury could have concluded the defendant, who was forty- six years old, engaged in
oral sexual intercourse with J. H., who was fourteen years old, and was, therefore,
guilty of felony carnal knowledge of a juvenile.
An appellate court errs by substituting its appreciation of the evidence and
credibility of witnesses for that of the fact finder and thereby overturning a verdict
on the basis of an exculpatory hypothesis of innocence presented to, and rationally
rejected by, the fact finder. See State v. Calloway, 2007- 2306 (La. 1121109), 1 So. 3d
417, 418 ( per curiam). Viewing the evidence in the light most favorable to the
prosecution, we find that a rational trier of fact could have found the State proved
beyond a reasonable doubt all of the elements of molestation of a juvenile, sexual
battery, aggravated crime against nature, and felony carnal knowledge of a juvenile.
This assignment of error is without merit.
ADMISSION OF HEARSAY EVIDENCE
In his first assignment of error, the defendant argues the trial court erred in
allowing into evidence a screenshot of a text message conversation between N.S.
and the anonymous person who informed N.S. of the offenses herein. Specifically,
10 the defendant contends the evidence was hearsay and violated his rights of
confrontation and cross- examination, as well as his right to present a defense.
The Sixth and Fourteenth Amendments to the United States Constitution and
Article 1, § 16 of the Louisiana Constitution guarantee a criminal defendant the
meaningful opportunity to present a complete defense. State v. Dressner, 2008-
1366 ( La. 716110), 45 So. 3d 127, 137, cert. denied, 562 U. S. 1271, 131 S. Ct. 1605,
179 L.Ed.2d 500 ( 2011). The Confrontation Clause of the Sixth Amendment
provides that "[ i] n all criminal prosecutions, the accused shall enjoy the right ... to
be confronted with the witnesses against him." Crawford v. Washington, 541 U. S.
36, 421 124 S. Ct. 1354, 1359, 158 L.Ed. 2d 177 ( 2004). The main purpose of
confrontation rights is to secure for the defendant the opportunity to cross- examine.
State v. Alexander, 2021- 1346 ( La. App. 1st Cir. 7/ 13/ 22), 344 So. 3d 705, 719, writ
denied, 2022- 01262 ( La. 1118123), 373 So.3d 62. Cross- examination is the primary
means by which to test the believability and truthfulness of testimony and has
traditionally been used to impeach or discredit witnesses. Id. at 719- 20.
Hearsay is a statement, other than one made by the declarant while testifying
at the present trial or hearing, offered in evidence to prove the truth of the matter
asserted. La. C. E. art. 801( C). Hearsay is not admissible except as otherwise
provided by the Code of Evidence or other legislation. La. C. E. art. 802. If a
statement is offered for a purpose other than for the truth of the matter asserted, then
the statement is not hearsay. State v. Patton, 2010- 1841 ( La. App. 1 st Cir. 6/ 10/ 11),
68 So. 3d 1209, 1219- 20. Under the res gestae exception to the hearsay rule,
statements are not hearsay if they are " events speaking for themselves under the
immediate pressure of the occurrence, through the instructive, impulsive and
spontaneous words and acts of the participants[.]" La. C. E. art. 801( D)( 4). This
doctrine includes not only spontaneous utterances and declarations made before and
after commission of a crime, but also includes testimony of witnesses pertaining to
11 what they heard or observed before, during, or after the commission of the crime if
the continuous chain of events is evident under the circumstances. Patton, 68 So. 3d
at 1220.
During J. H.' s testimony, the State presented to the jury a photograph
displaying a text message conversation between N.S. and an anonymous individual.
In that particular conversation, the anonymous person sent a sexual image of J. H.
and asked if it was J. H. The individual then told N.S, they would send a screenshot
of a separate conversation with the defendant. After J. H. testified she was involved
in the conversation between N. S. and the third party, defense counsel objected and
argued the messages were hearsay and J. H. could not authenticate them. The trial
court overruled the objection, noting that J. H. identified the conversation as one in
which she participated.
When the State later attempted to introduce the photograph, defense counsel
again objected on hearsay grounds and argued the evidence violated the defendant' s
right of confrontation because N.S. and the anonymous individual did not testify.'
After the State declined to present any argument on the matter, the trial court
admitted the photograph.
On appeal, the defendant asserts the trial court improperly admitted the
photograph into evidence because the text message conversation did not involve J.H.
but, rather, N.S. and an anonymous individual. Because N.S. and the anonymous
individual did not testify at trial, the defendant contends the evidence should have
been excluded as hearsay.
We find the trial court properly admitted the photograph into evidence
because it was part of the res gestae and, therefore, did not constitute hearsay. See
La. C. E. art. 801 ( D)( 4). The photograph at issue consisted of a text message
6 The defendant also filed a motion in limine to prevent the admission of any statements, writings, messages, or impressions from the anonymous person. The trial court denied the motion.
12 conversation between N.S. and an anonymous individual who alerted N.S. to the
sexually inappropriate messages between J.H. and the defendant. The evidence was
not offered to prove the truth of the matter asserted, i.e., that J. H. and the defendant
were in a sexually inappropriate relationship. Rather, the evidence was introduced
to explain how N. S. became aware of the allegation and why law enforcement
became involved. See La. C.E. art. 801( 0), State v. Mitchell, 2016- 0834 ( La. App.
1st Cir. 9121117), 231 So. 3d 710, 726, writ denied, 2017- 1890 ( La. 8131118), 251
So. 3d 410. A review of the photograph reveals the anonymous person merely asked
if the sexual picture was of J. H. and stated he or she would send a separate
conversation which included the defendant. Notably, N.S. did not confirm the
picture was of J. H., and the anonymous person did not state the separate conversation
included J. H. Accordingly, we find the photograph was offered to show how N. S.
became aware of the allegation against the defendant and to explain the sequence of
events leading to the defendant' s arrest. See Mitchell, 231 So. 3d at 726.
Because the challenged photograph was not hearsay, there was no
confrontation error. While N.S. and the anonymous individual did not testify,
neither of them were identified or established as a witness against the defendant, nor
did they make any statements against the defendant. Further, J. H. did not testify
about the contents of the conversation but merely confirmed that it occurred and that
she was in the photograph. See Mitchell, 231 So. 3d at 724- 25 ( no confrontation
error where officer testimony regarding investigation did not include content of non -
testifying witness' s statements). Therefore, the defendant has failed to demonstrate
how the admission of such evidence violated his constitutional right of
confrontation.'
Because we find the photograph was not hearsay, we pretermit discussion of the admittance of such evidence as being harmless error. See State v. Ratley, 2023- 0183 ( La. App. 1st Cir. 9115123), 2023 WL 6014498, * 3 n. 3 ( unpublished).
13 MOTION FOR MISTRIAL
In his third assignment of error, the defendant argues the trial court erred in
denying his motion for mistrial after the State made improper comments in its
closing argument.
Upon motion of a defendant, a mistrial shall be ordered when prejudicial
conduct in or outside the courtroom makes it impossible for the defendant to obtain
a fair trial, or when authorized by La. C. Cr.P. arts. 770 or 771. See La. C. Cr.P. art.
775. Louisiana Code of Criminal Procedure article 771 provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
1)When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of La. C. Cr.P. art.] 770; or
2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of [La.C. Cr.P. art.] 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
Because the statements at issue are governed by La. C.Cr.P. art. 771, further
discussion of La. C. Cr.P. art. 770 is pretermitted.$ State v. Torres, 2023- 0445 ( La.
8 Louisiana Code of Criminal Procedure article 770 provides, in part:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the j ury;
2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
3) The failure of the defendant to testify in his own defense; or
14 App. 1st Cir. 1119123), So. 3d , 2023 WL 7409251, * 3. The proper remedy
for inappropriate remarks under La. C.Cr.P. art. 771 is an admonishment directing
the jury to disregard the remark. Id. at * 4. However, the court may grant a mistrial
where an admonition is insufficient and the prejudicial remark makes it impossible
for the defendant to obtain a fair trial. See La. C. Cr.P. art. 771. A mistrial is a drastic
remedy, which is warranted only if a comment or remark results in substantial
prejudice to the accused. The determination of whether a mistrial should be granted
is within the sound discretion of the trial court, and the denial of a motion for mistrial
will not be disturbed on appeal absent an abuse of discretion. Torres, 2023 WL
7409251 at * 4.
Closing statement arguments shall be confined to evidence admitted, to the
lack of evidence, to conclusions of fact that the State or defendant may draw
therefrom, and to the law applicable to the case. The argument shall not appeal to
prejudice. La. C. Cr.P. art. 774. Although they should not misstate the evidence,
prosecutors are allowed wide latitude in choosing closing argument tactics. See
State v. Draughn, 2005- 1825 ( La. 1117107), 950 So. 2d 583, 614, cert. denied, 552
U. S. 1012, 128 S. Ct. 537, 169 L.Ed. 2d 377 ( 2007). The trial court has broad
discretion in controlling the scope of closing arguments, and this court will not
reverse a conviction on the basis of improper closing argument unless thoroughly
convinced that the remarks influenced the jury and contributed to the verdict. Bessie,
342 So. 3d at 27.
In the beginning of its closing remarks, the State argued the following: " I
apologize for what Jude Boudreaux made you sit through today and this week. I
apologize that, you know —I apologize to [ J. H.] for what happened to her. And no
fourteen] -year- old girl should ever have to have that happen to her."
4) The refusal of the judge to direct a verdict.
15 Defense counsel objected, arguing the statements were improper, and the trial
court overruled the objection. The State continued with its closing argument and
discussed the evidence presented to the jury, during which it stated that the defendant
admitted in his statement to sending a photograph of his penis to J. H. Defense
counsel again objected, and the trial court again overruled the objection. After the
State finished its closing argument, defense counsel moved for a mistrial. Regarding
the prosecutor' s first statement, the defense argued that the State expressed a
personal opinion about the guilt or innocence of the defendant and appealed to
sympathy, prejudice, and fear. Secondly, the defense argued the statement
concerning the defendant' s admission to sending a photograph was an improper
misstatement of the evidence. The trial court denied the motion for mistrial and
stated it did not find any comments in the State' s closing argument to be improper
such that the defendant was prejudiced or that a mistrial was necessary.
On appeal, the defendant argues the trial court erred in denying the motion for
mistrial because the State directly blamed the defendant for exercising his right to a
trial. The defendant further claims the State appealed to the sympathy and prejudice
of the jury by stating that J. H. should not have experienced what happened to her,
thereby placing weight on the jury' s verdict. Finally, the defendant asserts the State
misstated the evidence because the defendant did not admit to sending J.H. a nude
photograph.
We find no abuse of discretion in the trial court' s denial of the defendant' s
motion for mistrial. With respect to the first portion of the closing argument wherein
the State apologized to the jury and to J. H., we find the comments were based on the
evidence presented at trial and a conclusion of fact the State drew therefrom. The
State made the comments at the beginning of its closing argument, after which it
explained how the evidence admitted established the elements of the offenses. Thus,
the State did not blame the defendant for exercising his right to a trial or due process
16 but, rather, impressed upon the jury its view of the evidence. Moreover, the State
did not appeal to the prejudice or sympathy of the jury, as the comments did not
suggest the jury' s responsibility to render a guilty verdict. Further, the trial court
specifically instructed the jury they were not to be influenced by sympathy, passion,
prejudice, or public opinion. Considering the substantial evidence of the defendant' s
guilt, including his own confession, we find the argument was based on the evidence
adduced at trial and did not exceed the proper scope of closing arguments. See State
v. Martin, 93- 0285 ( La. 10117194), 645 So. 2d 190, 199- 200, cert. denied, 515 U.S.
1105, 115 S. Ct. 2252, 132 L.Ed.2d 260 ( 1995) ( prosecutor' s comment alluding to
suffering of victim and victim' s family did not appeal to passion or prejudice, as it
was based on evidence presented at trial).
With respect to the second remark at issue concerning the defendant' s
admission to sending a photograph to J.H., we find the remark represented the State' s
view of the evidence and was proper. In both her CAC statement and trial testimony,
J. H. stated the defendant sent her a photograph of his penis. While the defendant in
his statement stated he could not remember whether he sent the photograph to J.H.
or the anonymous person in the group chat in which J.H. was a party, he did not deny
sending it. Thus, he admitted to sending a photograph of his penis to J.H. or the
group chat, where J.H., as a member of the group chat, could view the photograph.
Therefore, the State' s remark was not a misstatement of the evidence.
Moreover, the defendant has failed to demonstrate that the State' s comments
were prejudicial to the extent he was deprived of a fair trial or a mistrial was
necessary. See La. C. Cr.P. arts. 771 and 921. The trial court instructed the jury that
the opening and closing arguments and statements by attorneys are not evidence and
that they must only consider the evidence or lack of evidence which was admitted at
trial. Much credit should be accorded to the good sense and fairmindedness ofjurors
who have seen the evidence and heard the argument and have been instructed by the
17 trial court that arguments of counsel are not evidence, Bessie, 342 So. 3d at 28.
Accordingly, the trial court did not abuse its discretion in denying the defendant' s
motion for mistrial.
EXCESSIVE SENTENCE
In his fourth assignment of error, the defendant argues the trial court erred in
imposing consecutive sentences on all four counts, resulting in an excessive
sentence.
The Eighth Amendment to the United States Constitution and Article 1, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment. Although a sentence is within statutory limits, it may violate a
defendant' s constitutional right against excessive punishment and is subject to
appellate review. State v. Kimble, 2023- 0176 ( La. App. 1st Cir. 9/ 21/ 23), 376
So. 3d 869, 874. A sentence is considered excessive if it is grossly disproportionate
to the severity of the offense or is nothing more than the needless imposition of pain
and suffering. A sentence is considered grossly disproportionate if,when the crime
and punishment are considered in light of the harm done to society, it shocks one' s
sense of justice. A trial court is given wide discretion in the imposition of sentences
within statutory limits, and an appellate court should not set aside the sentence in the
absence of an abuse of that discretion. Id. at 874- 875,
Louisiana Code of Criminal Procedure article 894. 1 sets forth factors the trial
court must consider before imposing a sentence. The trial court need not recite the
entire checklist of La. C. Cr.P. art. 894. 1, but the record must reflect that it adequately
considered the criteria. In light of the criteria expressed by La. C. Cr.P. art. 894. 1,
an appellate court' s review for individual excessiveness should consider the
circumstances of the crime and the trial court' s stated reasons and factual basis for
its sentencing decision. Remand for full compliance with La. C. Cr.P. art. 894. 1 is unnecessary when a sufficient factual basis for the sentence is shown. Kimble, 376
So. 3d at 874.
If the defendant is convicted of two or more offenses based on the same act
or transaction, or constituting parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court expressly directs that
some or all be served consecutively. La. C. Cr.P. art. 883. Thus, La. C.Cr.P. art.
883 specifically excludes from its scope sentences which the court expressly directs
to be served consecutively. Alexander, 344 So. 3d at 725. A trial judge retains
discretion to impose consecutive penalties based on the offender' s past criminality,
violence in the charged crimes, or the risk he or she poses to the general safety of
the community. Although the imposition of consecutive sentences requires
particular justification when the crimes arise from a single course of conduct,
consecutive sentences are not necessarily excessive. The failure to articulate specific
reasons for imposing consecutive sentences does not require remand if the record
provides an adequate factual basis to support the consecutive sentences. Id. at 725-
As to count one, molestation of a juvenile, the defendant was sentenced to
fifteen years imprisonment at hard labor. See La. R.S. 14: 81. 2( B)( 2). As to count
two, sexual battery, the defendant was sentenced to six years imprisonment at hard
labor. See La. R.S. 14: 43. 1( C)( 1). As to count three, aggravated crime against
nature, the defendant was sentenced to fifteen years imprisonment at hard labor. See
La. R.S. 14: 89. 1( C)( 1). As to count four, felony carnal knowledge of a juvenile, the
defendant was sentenced to six years imprisonment at hard labor. See La. R.S.
14: 80( D)( 1). The trial court ordered the sentences to be served consecutively. Thus,
the defendant was sentenced to a total of forty-two years imprisonment at hard labor.
Prior to sentencing the defendant, the trial court heard a victim impact
statement from J.H.' s mother, N.S., detailing how the incident affected J.H. and their
19 family. The defense then presented a written statement from the defendant, wherein
he expressed his regret over what happened. In its reasons for sentencing the
defendant, the trial court noted that it considered the factors set forth in La. C. Cr.P.
art. 894. 1. The trial court specifically noted the defendant' s refusal to accept any
culpability for his actions and the seriousness of offenses. The trial court further
found that the defendant, as J.H.' s stepfather, should have known J.H. was
particularly vulnerable due to her age and her trust in the defendant. Finally, the trial
court found that this case fell outside the parameters of La. C. Cr.P. art. 883, which
allows for concurrent sentences.
A thorough review of the record reveals the trial court adequately considered
the criteria of La. C. Cr.P. art. 894. 1 and did not manifestly abuse its discretion in
imposing the sentences herein, Further, the sentences imposed were not grossly
disproportionate to the severity of the offenses and thus were not unconstitutionally
excessive.
We also find the trial court did not abuse its discretion in imposing
consecutive sentences. Although the trial court did not provide as detailed reasoning
for imposing consecutive sentences, the record provides an adequate factual basis to
support the consecutive sentences. See Alexander, 344 So. 3d at 726. The trial court
specifically found there was an undue risk that the defendant would commit another
crime while on probation and that a lesser sentence than the one imposed would
diminish the seriousness of the offenses. See La. CEO, art. 894. 1( A)( 1) and ( 3).
The trial court noted the defendant' s failure to take accountability and to recognize
his actions as criminal in nature. Moreover, the trial court specifically rejected the
defendant' s assertion that J. H. initiated the sexual relationship, noting the age
difference and relationship between J. H. and the defendant. We note as a result of
these offenses, J.H. continues to deal with long-term effects, such as attending
counseling, experiencing panic and anxiety attacks, and being afraid to go out in
20 public or be in large crowds. Finally, the instant offenses did not arise from the same
course of conduct, nor were they part of a common scheme or plan. See La. C. Cr.P.
art. 883. Rather, they were four separate and distinct acts over the course of two
weeks. Therefore, the consecutive sentences imposed by the trial court were not
excessive. See State v. Young, 2018- 790 ( La. App. 3d Cir. 5/ 1/ 19), 270 So.3d 770,
780 ( no abuse of discretion in trial court' s imposition of consecutive sentences for
first-time sexual offender, where defendant' s actions were not part of a single
occurrence, defendant violated position of trust over victim, and victim had to attend
counseling).
PATENT ERROR
Pursuant to La. C. Cr.P. art. 920( 2), this court routinely conducts a review of
all appeals for error discoverable by mere inspection of the pleadings and
proceedings and without inspection of the evidence. State v. Anthony, 2023- 0117
La. App. 1st Cir. 11/ 3/ 23), So. 3d , 2023 WL 7270882, * 5. After a careful
review of the record, we have found one patent error.
The record reflects that after the trial court imposed the sentences herein, it
advised the defendant that he had " two years to file post -conviction relief." A
defendant generally has two years " after the judgment of conviction and sentence
has become final" to seek post -conviction relief La. C. Cr.P. art. 930. 8( A). Thus,
the trial court failed to adequately advise the defendant of the prescriptive period for
seeking post -conviction relief. However, the trial court' s failure to properly advise
the defendant has no bearing on the sentence and is not grounds to reverse the
sentence or remand for resentencing. State v. LeBoeuf, 2006- 0153 ( La. App. 1 st
Cir. 9/ 15/ 06), 943 So. 2d 1134, 1142- 43, writ denied, 2006- 2621 ( La. 8115/ 07), 961
So.2d 1158. Accordingly, this error is not reversible, and we decline to remand for
resentencing.
21 Out of an abundance of caution and in the interest of judicial economy, we
instead note for the record and advise the defendant that La. C. Cr.P. art. 930. 8
generally provides that no application for postconviction relief, including
applications which seek an out -of t-ime appeal, shall be considered if it is filed more
than two years after the judgment of conviction and sentence have become final
under the provisions of La. C. Cr.P. arts. 914 or 922. LeBoeuf, 943 So. 2d at 1143.
CONCLUSION
For all of the above and foregoing reasons, the defendant' s convictions and
sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.