STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 KA 1193
Judgment Rendered:
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 0110- F-2022
The Honorable William H. Burris, Judge Presiding
J. Collin Sims Counsel for Appellee District Attorney State of Louisiana Matthew Caplan Butch Wilson Assistant District Attorneys Covington, Louisiana
Jane L. Beebe Counsel for Defendant/Appellant Addis, Louisiana Randall K. Sturdivant
BEFORE: McCLENDON, WELCH, AND LANIER, JJ.
o LANIER, J.
The defendant, Randall K. Sturdivant, was charged by bill of information
with twelve counts of possession of pornography involving juveniles under the age
of thirteen years, violations of La. R.S. 14: 81. 1( A), ( E)( 1)( a), and ( E)( 5)( a). He
pled not guilty and, after a trial by jury, he was found guilty as charged on each
count. The trial court denied the defendant' s motion for post -verdict judgment of
acquittal and motion for new trial and sentenced him to forty years imprisonment
at hard labor without the benefit of probation, parole, or suspension of sentence, on
each count, to be served concurrently. The trial court denied the defendant's
motion to reconsider sentence. The defendant now appeals, assigning error to the
admission of expert testimony, the constitutionality of the sentences, and the trial
court's failure to observe a twenty -four-hour delay before imposing the sentences.
For the following reasons, we affirm the convictions, vacate the sentences, and
remand for resentencing.
STATEMENT OF FACTS
On November 15, 2021, Agent Steve Everly, a probation and parole
supervisor of the Department of Public Safety and Corrections ( DPSC) assigned to
monitor the defendant upon his release from prison for a prior offense,' conducted
a field visit at the defendant' s residence in Lacombe. In performing a routine check
of the defendant' s cell phone, Agent Everly discovered several videos of a sexual
nature, involving suspected prepubescent females. Agent Everly placed the
defendant under arrest, confiscated his cell phone, and turned it over to Special
Agent April Lucia of the Louisiana Bureau of Investigations ( LBI). Special Agent
Lucia confirmed that twelve of the video files on the defendant' s cell phone
I The defendant was being supervised upon release as a prior sex offender and, as a condition of his release, was not allowed to possess any form of pornography. On the day at issue, Agent Everly was supervising the defendant' s girlfriend as well, who was also a sex offender and living with the defendant at the time.
2 involved children under thirteen years of age. She also conducted a pretrial
interview of the defendant in which he confessed to possessing child pornography.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant argues the trial court erred
in allowing Special Agent Lucia to testify as an expert in a new area of expertise,
Internet Crimes Against Children ( ICAC) investigations. He argues the error was
so egregious as to call into question the validity of the jury verdict."
Preliminary questions concerning the competency or qualification of a
person to be a witness or the admissibility of evidence shall be determined by the
trial court. La. Code Evid. art. 104( A). A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if. (1) the expert' s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue; ( 2) the testimony is based on sufficient facts or data; ( 3) the testimony
is the product of reliable principles and methods; and ( 4) the expert has reliably
applied the principles and methods to the facts of the case. La. Code Evid. art.
702. Notably, the Louisiana Supreme Court has placed limitations on this codal
provision in that, " expert testimony, while not limited to matters of science, art or
skill, cannot invade the field of common knowledge, experience and education of
men." State v. Stucke, 419 So. 2d 939, 945 ( La. 1982).
Expert testimony, as generally with other evidence, is subject to the
balancing test of La. Code Evid. art. 403. See Comment ( f) to Article 702.
Relevant evidence is evidence which tends to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
than it would be without the evidence. La. Code Evid. art. 401. All relevant
evidence is admissible except as otherwise provided by positive law. Evidence
that is not relevant is not admissible. See La. Code Evid. art. 402. Relevant
3 evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, or by
considerations of undue delay or waste of time. La. Code Evid. art. 403.
Generally, the test of competency of an expert is the expert' s knowledge of
the subject about which he is called upon to express an opinion. A combination of
specialized training, work experience, and practical application of the expert' s
knowledge can combine to demonstrate that the person is an expert; a person may
qualify as an expert based upon experience alone. Once an expert has been found
qualified, the trier of fact is entitled to assess credibility and accept or reject the
opinion of the expert in light of the expert's qualifications and the facts that form
the basis of his or her opinion. The trial court is vested with wide discretion in
determining the competence of an expert witness, and its ruling on the qualification
of the witness will not be disturbed absent an abuse of discretion. State v. Lutz,
2017- 0425 ( La. App. 1 Cir. 11/ 1/ 17), 235 So. 3d 1114, 1132, writ denied, 2017-
2011 ( La. 8/ 31/ 18), 251 So. 3d 411; see also Comment ( d) to Article 702 (" Broad
discretion should be accorded the trial judge in his determination as to whether
expert testimony should be held admissible and who should or should not be
permitted to testify as an expert.").
In State v. Foret, 628 So. 2d 1116, 1123 ( La. 1993), the Louisiana Supreme
Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 592- 5939 113 S. Ct. 2786, 2796- 2697, 125 L.Ed.2d 469 ( 1993),
regarding proper standards for the admissibility of expert testimony. Under the
adopted standard, the trial court is required to act in a gatekeeping function to
ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable. State v. Chauvin, 2002- 1188 ( La. 5/ 20/ 03), 846 So. 2d 697,
700- 701. To assist the trial courts in their preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and can
M properly be applied to the facts at issue, the Louisiana Supreme Court suggested
the following general observations set forth in Daubert are appropriate: ( 1)
whether the theory or technique can be and has been tested; ( 2) whether the theory
or technique has been subjected to peer review and publication; ( 3) the known or
potential rate of error; and ( 4) whether the methodology is generally accepted by
the relevant scientific community. See Chauvin, 846 So. 2d at 701.
Thus, Louisiana has adopted Daubert' s requirement that in order for
technical or scientific expert testimony to be admissible under Article 702, the
scientific evidence must rise to a threshold level of reliability. Chauvin, 846
So. 2d at 701; Foret, 628 So. 2d at 1123. Daubert' s general " gatekeeping" applies
not only to testimony based upon scientific knowledge, but also to testimony based
on " technical" and " other specialized knowledge." Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171, 143 L.Ed.2d 238 ( 1999);
Independent Fire Ins. Co. v. Sunbeam Corp., 99- 2181 ( La. 2/ 29/ 00), 755 So. 2d
226, 234. The trial court may consider one or more of the four Daubert factors,
but that list of factors neither necessarily nor exclusively applies to all experts or in
every case. Kumho Tire, 526 U.S. at 141, 119 S. Ct. at 1171. Rather, the law
grants a district court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability determinations. Id., 526
U.S. at 142, 119 S. Ct. at 1171.
Herein, the State moved to qualify Special Agent Lucia as an expert witness
in the field of " investigations into [ i] nternet crimes against children." Defense
counsel traversed and then entered an objection, arguing that Special Agent Lucia
did not qualify as an expert based on her field of study, as she had never published
articles or previously qualified as an expert. Prior to the State' s motion to offer her
as an expert, Special Agent Lucia testified that she was assigned to the Cyber
Crime Unit in the attorney general' s office of the LBI. According to her testimony,
5 her primary responsibility as a special agent was to initiate investigations of cyber
tips from the National Center for Missing and Exploited Children and to report the
possession, distribution, or trading of sexual abuse images. She testified her duties
further included conducting undercover operations to uncover and investigate
people in their jurisdiction who had a sexual interest in children. Special Agent
Lucia noted that she had several years of experience as a licensed practical nurse,'
earned a bachelor's degree in sociology and criminal justice, and earned a master's
degree in applied criminology, focusing on sex offender behavior.
Special Agent Lucia's career in law enforcement began with the. DPSC,
Division of Probation and Parole, as a supervisor of sex offenders, preparing
presentence investigation reports. From there, she joined the Louisiana Attorney's
General' s Office in 2016, where she initially received thirty to forty hours of
intensive training in investigating crimes against children, operating forensic
computer programs, and interviewing sex offenders. She attends annual training
conferences on child exploitation and crimes against children and is certified to
conduct forensic interviews of sexually abused children.
Special Agent Lucia's additional experience included teaching criminal
justice and sociology, and providing state- wide ICAC training, including an eight-
hour segment called ICAC 101, for sheriffs offices, police departments, and
district attorney's offices. Outside of her own investigative cases, she confirmed
that she had not conducted research studies or published any articles, though she
reviewed research projects and publications as a part of her training. At the time of
the trial, Special Agent Lucia had been involved in more than 1500 investigations,
primarily involving child exploitation.
After defense counsel' s traversal and a brief rebuttal by the State, the trial
court ruled that Special Agent Lucia, as an ICAC investigator, was qualified to
2 Special Agent Lucia confirmed that her nursing background includes training in anatomy.
on testify as an expert witness. Subsequently, Special Agent Lucia testified that of the
videos retrieved from the defendant's cell phone, she was able to identify twelve
that contained prepubescent child abuse material and classified two others as " age
difficult." She identified slight breast development, pubic hair, and hips beginning
to develop as indicators for the " age difficult" classifications.
In challenging the trial court's ruling, on appeal, the defendant notes that
Special Agent Lucia had never been qualified as an expert before, there was no
Daubert hearing, her area of expertise was new, and she lacked participation in
research studies or publications. We note that the State, attaching a full resume of
education, employment history, and a curriculum vitae, filed pretrial notice of its
intent to call Special Agent Lucia as an expert in the field of ICAC investigations,
to present testimony on topics including methodology of identifying child sexual
assault materials. However, there is no indication in the record the defendant
requested a Daubert hearing. Further, the defendant did not assert the lack of a
Daubert hearing as grounds for his objection to Special Agent Lucia testifying as
an expert, nor did he raise questions regarding methodology or reliability, instead
only objecting on the grounds of her qualifications.
The purpose of a Daubert hearing is to determine the reliability of an
expert' s methodology, not whether the expert has the proper qualifications to
testify. State v. Lamonica, 2009- 1366 ( La. App. 1 Cir. 7/ 29/ 10), 44 So. 3d 895,
901, writ denied, 2010- 2135 ( La. 2/ 18/ 11), 57 So. 3d 331. It is the responsibility of
the opposing party to explore the factual basis for the opinion and thus, determine
its reliability. Leard v. Schenker, 2006- 1116 ( La. 6/ 16/ 06), 931 So. 2d 355, 357.
When the objecting party fails to request an evidentiary " gatekeeping" hearing
under the rationale of Daubert, his objections to the admissibility of an expert
witness's testimony under Daubert are not preserved for appeal. Harris v. State
ex rel. Dept. of Transp. and Development, 2007- 1566 ( La. App. 1 Cir.
Al 11/ 10/ 08), 997 So. 2d 849, 868, writ denied, 2008- 2886 ( La. 2/ 6/ 09), 999 So.2d
785. Accordingly, the defendant's failure to move for a Daubert hearing or object
on the grounds of a lack thereof results in a waiver of those issues on appeal. See
State v. Lofton, 2008- 0747 ( La. App. 1 Cir. 9/ 12/ 08), 2008 WL 4190572, * 3,
unpublished), writ denied, 2008- 2661 ( La. 5/ 22/ 09), 9 So. 3d 140; see also La.
Code Evid. art. 103( A)( 1); La. Code Crim. P. art. 841.
Moreover, given Special Agent Lucia's education, training, and experience
in investigating crimes against children, we find the trial court did not abuse its
discretion in qualifying her as an expert witness and allowing her to testify on the
evidence at issue at trial. Under Article 702, Special Agent Lucia' s specialized
knowledge and experience was sufficient to qualify her to testify as an expert in
the tendered field. Furthermore, the defendant' s claim that the testimony at issue
involves a new area of expertise is at odds with governing jurisprudence and
statutory authority.
Specifically, in accordance with La. R. S. 14: 81. 1( G), to determine the age of
an individual depicted in an image, the trier of fact may consider: ( 1) the general
body growth, bone structure, and bone development of the person; ( 2) the
development of pubic or body hair on the person; ( 3) the development of the
person' s sexual organs; ( 4) the context in which the person is placed or the age
attributed to the person in any accompanying video, printed, or text material; ( 5)
available expert testimony and opinion as to the chronological age or degree of
physical or mental maturity or development of the person; and ( 6) such other
information, factors, and evidence available to the trier of fact that the court
determines is probative and reasonably reliable. ( Emphasis added). Further, in
cases similar to the instant case, convictions have been upheld when the trial court
admitted testimony by qualified experts regarding the physical developmental
characteristic( s) that led to a conclusion regarding the age of a person depicted in evidence. See State v. Haley, 51, 256 ( La. App. 2 Cir. 5/ 24/ 17), 222 So. 3d 153,
165- 166, writ denied, 2017- 1230 ( La. 4/ 27/ 18), 241 So. 3d 305; State v. Wright,
45, 980 ( La. App. 2 Cir. 1/ 26/ 11), 57 So. 3d 465, 471, writ denied, 2011- 0421 ( La.
9/ 2/ 11), 68 So. 3d 520.
In Haley, the defendant therein was convicted of possession of pornography
involving juveniles and similarly asserted the testimony of the State's expert, Dr.
Margaret Springer, failed to meet the reliability standard set forth in Daubert. Dr.
Springer stated she analyzed the photographs at issue in that case, in part, by
applying the " Tanner stages[,]" which she explained are sexual maturity scales
widely recognized as a tool for determining normal growth patterns in children and
adolescents. Dr. Springer went into great depth describing the five levels of
Tanner stages in female development, with the first stage ending at the beginning
of breast development and visible signs of puberty, which is considered Tanner II.
She explained that growth rates vary based on nutrition, social considerations, and
ethnicity, but in the United States, female adolescents reach Tanner II between the
ages of nine to thirteen. According to Dr. Springer, Tanner III covers basically
ages thirteen to fourteen, and Tanner IV is the last stage before maturity, usually
marked by the beginning of menstruation and the outer signs of puberty, as the
body becomes ready for childbearing, denoting Tanner V, the mature female stage.
Haley, 222 So. 3d at 165- 166.
The appellate court found the trial court did not commit reversible error in
concluding Dr. Springer' s expert testimony met the reliability standard for
admissibility. The court noted Dr. Springer was admitted as an expert; therefore, it
was permissible for her to give an opinion based on her own knowledge and
experience. She described the Tanner stages as an " aid" devised by accumulated
statistics in child development. The court further noted, in accordance with La.
R. S. 14: 81. 1( G), the jury was permitted to make determinations based on its own
M knowledge of the general development of sexual organs and body growth whether
a juvenile under the age of seventeen is depicted in the images in question in that
case. Finally, the court noted Dr. Springer did not base her opinion solely on the
Tanner stages. Haley, 222 So. 3d at 166.
In Wright, the defendant was convicted of twenty- three counts of
possession of child pornography. Therein, Dr. Ann Springer, an expert in pediatric
and child abuse medicine, testified that certain evidentiary photographs depicted
children under the age of seventeen engaged in various sexual situations with adult
males. Dr. Springer stated the photographs at issue were chosen from a much
larger collection of photographs because they most conclusively showed juveniles
under the age of seventeen. She based her conclusions concerning the age of the
victims on the physical developmental characteristics of each child, such as
whether the victim had breast development, pubic hair, or the ability to maintain an
erection. She explained to the jury exactly which physical developmental
characteristic( s) led her to the conclusion that each exhibit depicted a child under
the age of seventeen. Considering, in part, Dr. Springer's testimony, the appellate
court found the evidence was sufficient to support the convictions in that case.
Wright, 57 So. 3d at 471.
Herein, according to Special Agent Lucia's testimony, in determining the age
of an individual, she considers the presence or absence of the following anatomical
features: ( 1) breast development; ( 2) pubic hair; and ( 3) general bone structure or
size difference among children and adults. Special Agent Lucia testified that older
females especially tend to develop hips and widen around the breast area while a
child would be " straight ... [ a] 11 the way down." She noted her assessment was
never or rarely based on only one factor and is instead based on the totality of
factors, including facial features.
10 In determining that twelve of the videos possessed by the defendant involved
subjects that were under the age of thirteen, Special Agent Lucia specifically noted
that she classified the subjects as prepubescent children based on the lack of hips,
no breast development, an areola area light in color, no pubic hair, and indicative
facial features. She observed that one of the children appeared to have just gotten
her permanent teeth and further observed the height difference between her
shoulders and the floor to assess her overall size. The child likewise did not have
any breast development. Special Agent Lucia further compared the size of an adult
hand to a child's buttock, noting that it was completely encompassed by the adult
hand. She candidly testified that in two of the videos retrieved from the
defendant' s phone she could not make an opinion as to the age of the subject,
resulting in the " age difficult" classifications. She confirmed that in such
questionable cases, charges are not pursued.
As detailed above, we .find the testimony at issue was highly probative and
find no abuse of discretion regarding the admission of the testimony. Furthermore,
the jury was instructed as to their duty regarding the assessment of the evidence
and to determine the proper weight to be given to expert testimony. The trial court
specifically informed the jurors they had the right to accept or reject expert
testimony. Whether the subjects depicted in the videos were younger than thirteen
was a fact to be determined by the jury, and expert testimony is but one factor that
may be utilized in making that determination. See La. R.S. 14: 81. 1( G). Here, the
members of the jury had the opportunity to view the images and make their own
determination regarding the evidence. In accordance with the foregoing, we find
assignment of error number one is without merit.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE
In assignment of error number two, the defendant argues the concurrent,
forty -year sentences imposed herein, the statutory maximum on each count, is
11 excessive. In assignment of error number three, the defendant argues the trial court
erred in failing to observe the statutorily required twenty -four-hour delay, prior to
the imposition of the sentences.
Herein, the defendant filed motions for new trial and post -verdict judgment
of acquittal, and the trial court denied them both on the day of sentencing, just
prior to the imposition of the sentences. However, La. Code Crim. P. art. 873
provides, in pertinent part, "[ i] f a motion for a new trial, or in arrest of judgment, is
filed, sentence shall not be imposed until at least twenty- four hours after the
motion is overruled." There is no indication in the record that the defendant
waived the delay in this case. Thus, the trial court erred by sentencing the
defendant immediately after ruling on the motion for new trial.
In State v. Augustine, 555 So.2d 1331, 1333- 34 ( La. 1990), the Louisiana
Supreme Court noted that a failure to observe the twenty -four-hour delay provided
in Article 873 may be considered harmless error where the defendant could not
show that he suffered prejudice from the violation, and sentencing is not raised on
appeal. See also State v. Stafford, 2020- 0299 ( La. App. 1 Cir. 2122/ 21), 321
So. 3d 965, 969. Where, however, a defendant does challenge his sentence, failure
to follow the required twenty -four-hour delay renders a sentence void. Augustine,
555 So.2d at 1333 ( citing State v. Mistich, 186 La. 174, 171 So. 841 ( 1937) and
State v. George, 218 La. 18, 48 So.2d 265 ( 1950), cert. denied, 340 U.S. 949, 71
S. Ct. 528, 95 L.Ed. 684 ( 1951)).
In this case, through a claim of excessiveness, the defendant is challenging
his sentences, thus meeting the requirements of Augustine for remand. State v.
Pursell, 2004- 1775 ( La. App. 1 Cir. 5/ 6! 05), 915 So.2d 871, 874. Additionally, as
stated, the record does not contain an expressed or even an implicit waiver of the
12 sentencing delay.' While defense counsel did not contest or object to moving on to
sentencing after the rulings on the motions, in State v. Kisack, 2016- 0797 ( La.
10/ 18/ 17), 236 So. 3d 1201, 1205 ( per curiam), cert. denied, 583 U.S. 1160, 138
S. Ct. 1175, 200 L.Ed.2d 322 ( 2018), the Louisiana Supreme Court found the
defense counsel' s participation in the sentencing hearing was insufficient to
constitute a waiver of the delay required by Article 873. As further observed by
the court, "[ a] n implicit waiver ... runs afoul of the plain language of Art. 873 that
requires that the waiver be expressly made." Id. Therefore, given the
circumstances present, we must vacate the defendant' s sentences and remand the
case to the trial court for resentencing. See Augustine, 555 So. 2d at 1334- 1335;
State v. Denham, 2001- 0400 ( La. App. 1 Cir. 12/ 28/ 01), 804 So. 2d 929, 932, writ
denied, 2002- 0393 ( La. 1/ 24/ 03), 836 So. 2d 37.
Because we find that Augustine requires us to vacate the defendant' s
sentences, we pretermit consideration of the merits of the defendant' s
excessiveness claim raised in assignment of error number two. See State v.
Thompson, 2010- 2254 ( La. App. 1 Cir. 6/ 10/ 11), 2011 WL 3423798, * 1
unpublished). However, we note that when resentencing the defendant, the trial
court should advise him of the time limitations provided by La. Code Crim. P. art.
930. 8( A) for applying for post -conviction relief. Id. The sentences are hereby
vacated, and the matter is remanded to the trial court for resentencing in accordance with this opinion.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.
3 While the minutes indicate the defendant waived the delay of sentencing, there is no indication of this in the transcript and the State concedes on appeal that the trial court proceeded to sentencing without a twenty -four-hour delay as mandated by Article 873. Where there is a conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983); State v. Lee, 2023- 0079 ( La. App. 1 Cir. 6/ 2/ 23), 2023 WL 3861763, 1 n. l ( unpublished).