State Of Louisiana v. Rodney Jack Strain, Jr.

• Court: Louisiana Court of Appeal
• Decided: June 1, 2023
• Docket: 2022KA0670
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2022 KA 0670

VERSUS

RO DNE Y JACK N JR. C K STRAIN,

Judgment Rendered: JUN 012023

Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 0703- F- 2019 The Honorable Ashly Bruce Simpson, Ad Hoc Judge Presiding

Warren L. Montgomery Counsel for Appellee District Attorney State of Louisiana Matthew Caplan Assistant District Attorney Covington, Louisiana

Gwendolyn K. Brown Counsel for Defendant/Appellant Baton Rouge, Louisiana Rodney Jack Strain, Jr.

BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ. GUIDRY, C.J.

A grand jury indicted the defendant, Rodney Jack Strain, Jr., with

committing the following offenses: aggravated rape ( counts one through four);

aggravated incest ( count five); indecent behavior with a juvenile ( count six);

aggravated incest ( count seven); and sexual battery ( count eight).' He pled not

guilty and, following a jury trial, was found guilty as charged on each count. The

defendant subsequently filed a " motion for post -verdict judgment of acquittal, and

alternative motion for a new trial," which the trial court denied in separate rulings.

Thereafter, the trial court sentenced the defendant on counts one through

four to life imprisonment at hard labor without the benefit of parole, probation, or

suspension of sentence on each count. On counts five and seven, the trial court

sentenced the defendant to fifteen years imprisonment at hard labor and a

15, 000. 00 fine' on each count. On counts six and eight, the trial court sentenced

the defendant to five years imprisonment at hard labor on each count, with count

eight to be served without benefit of parole. The trial court further ordered the

following: counts one through four to be served concurrently; counts five and six

to be served concurrently but consecutive to the sentences imposed on counts one

through four; counts seven and eight to be served concurrently but consecutive to

the sentences imposed on counts one through six.

Counts one through four were based on violations of La. R.S. 14: 42. Counts five and seven were based on a violation La. R. S. 14: 78. 1. Count six was based on a violation of La. R. S. 14: 81. And count eight was based on a violation of La. R. S. 14: 43. 1. In reference to counts one through four, in 2015, subsequent to the instant offenses, the Legislature renamed the offense of aggravated rape to first degree rape without any material alteration of the substance of the crime. See La. R.S. 14: 42( E); 2015 La. Acts, Nos. 184, § 1 and 256, § 1. Herein, we reference the offenses by the previous name based on the dates the offenses were committed. In reference to counts five and seven, subsequent to the commission of the offenses, the Legislature repealed former La. R.S. 14: 78. 1 and amended La. R.S. 14: 89. 1 to include the crime of aggravated incest under the broader crime of aggravated crime against nature. See La. R.S. 14: 89. 1 ( A)(2)( a); 2014 La. Acts, No. 177, §§ 1 & 2; 2014 La. Acts, No. 599, § I.

Z Upon finding that imposition of a fine would not cause a substantial financial hardship on the defendant or his dependents, the trial court ordered that the defendant be imprisoned for a period of six months in the parish jail should he default on payment of the $ 15, 000. 00 fine imposed on counts five and seven.

2 The defendant now appeals, raising ten assignments of error that challenge

several trial court rulings and the sufficiency of the evidence on counts five, seven,

and eight. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS3

An investigation of the defendant for sexual abuse started in 2017, after

Special Agent Timothy Lee Moore with the Internal Revenue Service ( IRS) and

Special Agent DeWayne J. Horner with the Federal Bureau of Investigations ( FBI)

interviewed S. K. (the victim in counts one through three) as part of an unrelated

investigation of ownership interests in St. Tammany Workforce Solutions, L.L.C.

STWS), a work release program.' S. K. was then a major with the St. Tammany

Parish Sheriffs Office ( STPSO), overseeing its maintenance division. While

being interviewed regarding STWS, S. K. revealed that the defendant sexually

abused him when he was a child. The interview took place in the presence of

S. K.' s wife and child. S. K. provided the agents with the names of four other

potential victims of the defendant' s sexual abuse: R.F. ( not related to this case);

M.F. ( the victim in count four); A.D. ( the victim in counts seven and eight); and

R.P. ( the victim in counts five and six), who was identified as the defendant' s

nephew.

For the sex crimes portion of the investigation, the special agents assigned

an FBI child/ adolescent forensic interviewer, Janetta Michaels, to assist in

3 As the charged crimes are sex offenses, we will refer to the victims and their immediate family members by their initials only. See La. R. S. 46: 1844( W); State v. Mang_ rum, 20- 0243, p. 2 n. l La. App. 1st Cir. 2122121), 321 So. 3d 986, 989 n. 1, writ denied, 21- 00401 ( La. 1011121), 324 So. 3d 1050. The defendant was convicted of eight offenses that involve four different victims. 4 According to the special agents, the defendant converted the work release program from a publicly -run program into STWS, a privately -run limited liability company that was awned on paper by Allen Tingle, Brandy Hanson ( the daughter of David Hanson, a captain in the St. Tammany Parish Sheriffs Office (STPSO)), and J. K. (S. K.' s son). Brandy and J. K. were former STPSO employees who resigned their employment to assume ownership of STWS, as ownership of the program while working for the STPSO was prohibited by state law. Brandy and J. K. had no active role in the program, and Tingle ran the operation. STWS had a contract with the

STPSO, which was headed by the defendant, who was at that time Sheriff of St. Tammany David and S. K. used their children as " shell owners" so they could continue to work for Parish. the STPSO.

3 interviewing the alleged victims. They also brought in Trooper Malcolm Brown

with the Louisiana State Police, and the District Attorney' s Office assigned Agent

Allyson Hoffine with the U.S. Postal Inspection Services to assist with the

investigation.

Subsequently, the special agents interviewed M.F., who was incarcerated at

the time. Early on during questioning by the special agents, M.F. broke down

crying and stated that he had been sexually abused by the defendant as a child.

M.F. did not, at that time, disclose that the abuse included penetration.

An interview with R.P. was set up next. The investigation bore out that in

addition to being a STPSO employee, R.P. was receiving a $ 30,000. 00 salary from

STWS, though he had no active role in the program. R.P. started crying and

appeared distraught as he confirmed to the special agents that he had been abused

by the defendant. He declined an offer to meet with a forensic interviewer or

specialist.

A couple of weeks later, the special agents interviewed A.D. A.D.

confirmed that he was sexually abused by the defendant. In addition to

interviewing the alleged victims, the agents interviewed family members and

friends to whom the victims may have spoken about the alleged abuse before

reporting the allegations to law enforcement. Trooper Brown determined that S. K.

previously disclosed his claims to his wife, V.K., in 2011 or 2013. He further

determined that R.P. first reported his sexual abuse claims to his mother prior to

the investigation. The IRS interviews were memorialized, the forensic interviews

were recorded, and the sexual abuse allegations were presented to the St.

Tammany Parish District Attorney' s Office in the spring of 2018. it was

determined that the IRS and FBI would continue to investigate the work release

4 program, while Trooper Brown and Agent Hoffine, individuals unassociated with

the STPSO, would investigate the sexual abuse allegations.'

S.K. (Aggravated Rape, Counts 1- 3):

At trial, S. K. testified that his date of birth is July 19, 1968, and that he knew

and grew up around the defendant from about eight years old to adulthood. The

defendant was five and a half years older than S. K.b S. K. testified that his family

was poor and ultimately moved to property owned by the Strains when S. K. was

between nine and eleven years old. S. K.' s parents worked at one of the Strain' s

local fireworks businesses twice a year ( in July and December), and when S. K.

was ten and eleven years old, he worked at the Mandeville fireworks stand with the

defendant. S. K. testified that the defendant was like a brother to him and treated

hire very well. S. K. testified that when he was ten years old, while he and the

defendant were spending nights at the fireworks stand, the defendant began

initiating sexual contact with him.' S. K. testified the defendant was about two

hundred pounds larger than him at the time and said he " played dead" during the

acts. Later, when S. K. was an adult working at the STPSO, the defendant asked to

have oral sex with S. K. in exchange for a vehicle that S. K. needed for his

maintenance duties ( or some other advantages at work), and the defendant would

arrange for S. K. to engage in sexual acts with a female in the defendant' s presence.

5 The name of a potential fifth victim, R.R., arose during the course of the interviews. R.R., the defendant' s cousin who was almost four years younger than the defendant, testified at trial about the defendant touching him inappropriately that progressed to penile -anal intercourse when he was between nine and eleven years old. R.R. is not involved in any of the offenses charged in the indictment for this case. Additionally, the defendant' s wife, Lisa Strain, testified to a separate incident where, in 2015, her adopted sister made public accusations against the defendant. She was told that her sister later recanted the allegations. According to the grand jury indictment, the defendant' s date of birth is November 28, 1962. S. K. detailed acts including the defendant fondling and touching S. K.' s penis and pulling S. K. up against him to cause S. K. to penetrate the defendant anally, as well as the defendant later performing oral sex on S. K. As a married adult raising children and struggling financially, S. K. accepted the defendant' s offer to work for him at the STPSO. S. K.' s wife, their two sons, and his daughter- in-law also worked for the STPSO.

5 M.F. (Aggravated Rape, Count 4):

M.F. testified that he has known the defendant his whole life and also grew

up around the defendant in Abita Springs. 8 M.F. was born on September 5, 1969,

so he is about seven years younger than the defendant. When M.F. was about six

or seven years old and weighed about 60 pounds, the defendant was thirteen or

fourteen years old and weighed about 250 to 300 pounds at that time. M.F.' s

parents and the defendant' s parents were friends, and M.F. spent several days a

week at the Strain residence. M.F. initially enjoyed swimming in the pond on the

Strains' property while being supervised by the defendant. But, according to his

testimony, when he was six or seven years old, while they were in the pond

swimming on the Strains' property, the defendant started touching his private

parts.' M.F. testified that the defendant was intimidating and threatened him,

telling M.F. he " better not go back and say anything." M.F. stated the defendant

was like a big brother and father to him. M.F. testified that over the years, as an

adult, he would ask the defendant to provide things for him, and the defendant

would do it "[ b] ecause he knows what he did to me."

R.P. (Aggravated Incest & Indecent Behavior with Juveniles, Counts 5 & 6):

R.P. was thirty-four years old at the time of trial and his date of birth is June

23, 1987. R.P., also the defendant' s nephew, testified that his mother and the

defendant' s wife are sisters. He also confirmed that A.D. is the son of another one

of Mrs. Strain' s sisters. He testified that he was very close with the defendant

8 S. K. testified that he grew up with M.F., who was about a year younger than S. K., and

confirmed that M.F. also grew up around the defendant. M.F. confided in S. K. and S. K.' s wife that he had been molested by the defendant. 9 M.F. testified the defendant began by grabbing his hand and forcing M.F. to touch the defendant' s penis, which then progressed to pushing and rubbing his penis against M.F.' s anus without penetration because " it wouldn' t fit" and putting his mouth on M.F.' s penis underwater. M.F. testified that this conduct continued until M.F.' s early teenage years and escalated to the defendant making M.F. perform oral sex on the defendant, the defendant masturbating in M.F.' s presence and ejaculating on M.F., the defendant digitally penetrating M.F.' s anus, the defendant forcefully penetrating M.F.' s anus with his penis when M.F. was about ten or eleven years old, and the defendant causing M.F. to penetrate the defendant with his penis.

6 when he was about nine and ten years old and that between the ages of ten and

fifteen years old, he stayed overnight at the Strain residence numerous times,

would go hunting with the Strains, and would take trips with them.

R.P. testified that when he was around ten years old, while riding a four -

wheeler with the defendant, the defendant put his hand " closer and closer" to

RR' s inner thigh while moving his body closer to R.P. and putting his groin

against him. As R.P. kept trying to move forward, the defendant would scoot

closer to him. R.P. indicated that other inappropriate conduct occurred while

hunting and at the Strain residence. For example, the defendant wanted R.P. to

stand next to him to urinate. The defendant would also rub RR' s chest, touch

R.P.' s groin area, and try to " play with [ R.P.' s], pubic hair[.]" According to R.P.,

the defendant' s acts progressed to the defendant touching and trying to stroke

RR' s penis, sometimes causing R.P. to get an erection, and to the defendant

telling R.P. to masturbate in his presence, while watching internet pornography.

R.P. testified that the above described acts at the Strain residence would occur after

the other members of the household went to sleep.

A.D. (Aggravated Incest & Sexual Battery, Counts 7 & 8):

A.D. testified that he was thirty-three years old at the time of the trial and

that he is the defendant' s nephew, specifically adding that the defendant' s wife is

his mother' s sister. He testified that their families were close and that he spent

1° time at the Strain residence. A.D. testified that he grew up around the defendant

and used to go hunting and would hang out with the defendant and his family. He

stated he attended events and slept overnight at the Strain residence where he was

allowed to consume alcohol while in high school.

io A.D. further testified that R.P. is his cousin (the son of one of A.D.' s mother' s sisters) and that the defendant is RR' s uncle as well.

7 A.D. testified that when he was fifteen years old and in his sophomore year

in high school, the 2004- 2005 school year, he slept over at the defendant' s

residence because he had too much to drink that evening, and his uncle ( the

defendant) did not want him to drive. A.D. further testified that while asleep on

the couch, he woke up between midnight and 2: 00 a.m., when he felt the

defendant' s hand on his groin area. A.D. testified that he then rolled over in order

to get the defendant' s hand off of his groin, pretending to still be asleep. The

defendant was between forty-one and forty-two years old at the time.

ASSIGNMENTS OF ERROR NUMBERS 8 AND 9: SUFFICIENCY OF THE EVIDENCE ON COUNTS 5, 7, & S

In assignments of error numbers eight and nine, the defendant challenges the

sufficiency of the evidence of aggravated incest for counts five and seven and

sexual battery for count eight. Regarding counts five and seven, the two counts of

aggravated incest, he argues that based on the relationship between himself and the

victims, R.P. and A.D., he cannot be said to have possessed the guilty knowledge

necessary to support those convictions. He notes that he is related to R.P. and A.D.

by way of marriage, because their mothers are his wife' s biological sisters. The

defendant argues that the Louisiana Supreme Court misinterpreted La. R.S.

14: 78. 1, the aggravated incest statute, in holding that it applies to people related by

marriage as well as by blood or adoption. He further argues that this court should

consider the issue anew in light of the fact that the legislature used the same

language, after repealing La. R.S. 14: 78. 1, when it incorporated the crime of

aggravated incest into the crime of aggravated crime against nature. Moreover, he

argues that A.D.' s testimony was based on leading questions and lacked credibility

due to his equivocation. Regarding count eight, sexual battery, the defendant

8 contends that the touching of the " groin" is not a prohibited act under La. R.S.

14: 43. 1, the statute governing sexual battery."

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. Duhon, 18- 0593, pp. 10- 11 ( La. App. 1 st Cir. 12128118), 270 So. 3d 597,

609, writ denied, 19- 4124 ( La. 5128119), 273 So. 3d 315. The reason for reviewing

sufficiency first is that the accused may be entitled to an acquittal under Hudson v.

Louisiana, 450 U.S. 40, 43, 101 S. Ct. 970, 972, 67 L.Ed.2d 30 ( 1981), if a rational

trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S.

307, 99 S. Ct. 2781, 61 L.Ed.2d 560 ( 1979), in the light most favorable to the

prosecution, could not reasonably conclude that all of the essential elements of the

offense have been proven beyond a reasonable doubt. Hearold, 603 So. 2d at 734;

Duhon, 18- 0593 at p. 11, 270 So. 3d at 609.

Thus, in reviewing claims challenging the sufficiency of the evidence, an

appellate court must determine whether any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt based on the

entirety of the evidence, both admissible and inadmissible, viewed in the Iight most

favorable to the prosecution. See Jackson, 443 U. S. at 319, 99 S. Ct. at 2789; State

v. Oliphant 13- 2973, p. 5 ( La. 2121114), 133 So. 3d 1255, 1258- 59 ( per curiam);

see also La. C. Cr.P. art. 821( B); State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La.

1988); Statey. Livous, 18- 0016, p. 3 ( La. App, 1st Cir. 9124118), 259 So. 3d 1036,

1039- 40, writ denied, 18- 1788 ( La. 4115119), 267 So. 3d 1130. A conviction based

1 As discussed above, on appeal, the defendant challenges the sufficiency of evidence regarding three of the offenses, aggravated incest on counts five and seven and sexual battery on count eight. These offenses involve two victims, R.P. ( aggravated incest) and A.D. ( aggravated incest and sexual battery). Thus, counts one, two, three, four and six are not addressed in this section. In challenging the sufficiency of the evidence for counts five, seven, and eight, the defendant challenges A.D.' s credibility ( not RR' s), his relationship with the victims of aggravated incest R.P. and A.D.), and the act (touching A.D.' s groin) used to prove sexual battery in this case. 6 on insufficient evidence cannot stand, as it violates due process. See U.S. Const.

amend. XIV, La. Const. art. 1, § 2. When analyzing circumstantial evidence, La.

R.S. 15: 438 provides that the fact finder must be satisfied that the overall evidence

excludes every reasonable hypothesis of innocence. State v. Patorrno, 01- 2585, p. 5

La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 141, 144. 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 which raises a reasonable doubt. State v. Dyson, 16-

1571, p. 10 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 220, 228, writ denied, 17- 1399

La. 6/ 15/ 19), 257 So. 3d 685.

Under former La. R.S. 14: 78. 1( A) ( prior to repeal by 2014 La. Acts, Nos.

177, § 2& 602, § 7), aggravated incest ( counts five and seven) was defined, in

pertinent part, as the engaging in 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" nephew. ( Emphasis added).

Prohibited acts under former La. R.S. 14: 78. 1( B)( 1) and ( 2), in pertinent part,

included sexual battery ( later defined herein), indecent behavior with juveniles, or

lajny 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." 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. State v.

Brown, 20- 0150, p. 7 ( La. App. 1st Cir. 2/ 19/ 21), 2021 WL 650816, * 4, writ

denied, 21- 0045 8 ( La. 611 / 21), 316 So. 3 d 83 5. Pursuant to La. R. S. 14: 43. 1( A)( 1)

and ( 2) ( prior to amendment by 2015 La. Acts, No. 256, § 1), sexual battery ( count

10 eight) was 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 without the consent of the victim.

Aggravated incest and sexual battery are general intent crimes; thus, the only

intent necessary to sustain a conviction is established by the very doing of the

proscribed acts. See La. R.S. 14: 11; Brown, 20- 0150 at p. 9, 2021 VVL. 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 the absence of internal contradiction or irreconcilable conflict with

physical evidence, one witness' s testimony, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Dorsey, 10- 0216, pp.

43- 44 ( La. 9/ 7/ 11), 74 So. 3d 603, 634, cert. denied, 566 U.S. 930, 132 S. Ct. 1859,

182 L.Ed.2d 658 ( 2012). Further, when there is conflicting testimony about factual

matters, the resolution of which depends upon a determination of the credibility of

the witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Smith, 22- 0231, p. 7 ( La. App. 1st Cir. 1114122), 354 So. 3d 697, 702. 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

1 So. rejected by, the jury. See State v. Calloway, 07- 2306, pp. 1- 2 ( La. 1/ 21/ 09),

3d 417, 418 ( per curiam). Accordingly, on appeal, this court will not assess the

credibility of witnesses or reweigh the evidence to overturn a fact finder' s

determination of guilt. State v. Lgyy, 13- 1025, p. 6 ( La. App. 1st Cir. 3/ 11/ 14),

142 So. 3d 1000, 1006, writ denied, 14- 0644 (La. 10131114), 152 So. 3d 150.

11 R.P.'s Testimony (Aggravated Incest, Count 5);

R.P. testified that his biological father spent a lot of time in jail and was no

longer in his life by the time he was ten or eleven years old. The defendant

stepped up to fill that void. R.P. stated that his uncle and aunt, the defendant and

Mrs. Strain, played a large role in raising him as a child and that he would stay at

their house almost every weekend and more so during hunting season and in the

summertime. R.P. experienced a lot of " firsts" in his life with the defendant' s

family, including his first trip to Disney World, his first time hunting, and his first

time riding four wheelers.

R.P. recalled the defendant making inappropriate comments while he was at

the Strain residence about the size of RR' s penis, his pubic hair growth, and

inquiries about masturbation. R.P. testified that the defendant' s actions on the

four -wheeler -- touching R.P. in and/ or around his inner thigh and putting his groin

against him -- felt inappropriate. R.P. would " freeze" and would not say anything

during the acts. He said he would try to block it out while it was occurring and

was afraid to tell anyone. R.P. stated that he had not had any sexual experiences

prior to the defendant' s conduct and was confused by the acts. He ultimately

started wearing two pairs of underwear while visiting the defendant' s residence in

an attempt to discourage the acts. R.P. also testified about an inappropriate

incident that occurred when the defendant came to visit him when R.P. was

nineteen years old and serving in the Coast Guard.

After R.P. got out of the Coast Guard in 2011, he returned home and sought

employment with the defendant. 12 In 2012, while the two of them were at a

restaurant, R.P. told his mother, J.M., about him being molested by the defendant

after she mentioned claims made by one of his aunts ( his mother' s adopted sister).

12 At some point, the defendant and Mrs. Strain also gave R.P. and his wife a deal on buying some property next door to the defendant' s home.

12 R.P. asked his mother not to tell anyone. A.D. and R.P. subsequently disclosed to

each other that they had been abused but did not discuss details. R.P. told his wife

about the abuse after he learned that the FBI was investigating the defendant

regarding STWS.

R.P. further mentioned that when he was deciding whether to speak with the

district attorney' s office about being molested by the defendant, he had a highly

emotional phone call with his mother, during which he told his mother that "[ the

defendant] needs to pay for what he did." R.P. confirmed that he sought

counseling and would sometimes self m - edicate by drinking a lot. On cross-

examination, after listening to a recording of a phone call that took place in

October or November 2017, R.P. admitted telling his mother during that phone call

that he felt like the FBI was blackmailing him into providing pedophile

information against the defendant based on his involvement with the work release

program.

A.D.' s Testimony (Aggravated Incest & Sexual Battery, Counts 7& 8):

In addition to testifying that the defendant touched his groin while he was

asleep, A.D. testified that the defendant would sometimes make comments about

the size of A.D.' s penis. A.D. joined the Marine Corps after graduating from high

school in 2007 and left St. Tammany Parish. When he returned, he lived with R.P.

In 2011 or 2012, A.D. received a phone call from his mother asking if his uncle

had made any sexual advances towards him. He told his mother the defendant had

not. A.D. testified that soon thereafter, he told R.P. that the defendant molested

him, and R.P. told A.D. what happened to him as well. A.D. did not discuss it with

anyone else until October of 2017, when he was approached by the FBI and

relayed the account given at trial. After the 2017 interview, A.D. met with the

defendant. The defendant gave him a hug and told him, " I' m sorry if I ever hurt

you in any way. I' m sorry." A.D. recalled that the defendant then asked if the

13 investigating agents had spoken to R.P. and, after A.D. confirmed to him that they

had, the defendant commented, "[ hjey, they just want to know if I f* him."

In 2018, A.D. approached Trooper Brown and told him that he did not want

to be a part of the case, saying that he did not remember the incident. A.D.

admitted that he also told the defendant' s attorney and one of his cousins that the

molestation did not happen. However, A.D. repeatedly confirmed that his

testimony that the defendant molested him was truthful and that he just wanted to

get out of testifying and participating in the case. A.D. indicated that he only

testified before the grand jury and at trial because he was subpoenaed to do so.

Other Pertinent Trial Witnesses:

Lisa Strain, the defendant' s wife, confirmed that she is the aunt of R.P. and

A.D., sons of her biological sisters, J.M. (R.P.' s mother who also testified at trial)

and K.L. ( A.D.' s mother). Mrs. Strain testified that when he was a child, R.P.

stayed at their house every weekend for a couple of months during hunting

seasons. She further testified that it was not out of the ordinary for him to sleep

over. Mrs. Strain also confirmed that the defendant took a one -day hunting trip to

Destin by himself when R.P. was stationed there.

Further, Mrs. Strain specifically confirmed that A.D. sometimes stayed at

their residence when he was in high school. She testified regarding " an occasion"

in 2004, when children in the household, including the Strains' son, drank alcohol.

Mrs. Strain denied seeing A.D. drinking, but stated that by the end of the evening,

she was aware that he stayed at their house because he drank too much. She

testified that she and the defendant heard her son vomiting while A.D. was asleep

on the sofa. Mrs. Strain further testified that A.D. was sleeping on his back and

that they told him to roll over out of concern that he might get sick.

Mrs. Strain confirmed that she spoke to her sister, J. M., about R.P. in person

and by phone calls and text messages between December 2, 2017 and December

14 18, 2017. Mrs. Strain asked J. M. for permission to confront the defendant about

RR' s claims, and J. M. agreed that she could do so. Mrs. Strain also reached out to

her other sister, K.L., about A.D. being a potential victim. Mrs. Strain confirmed

that she sent a text message to her sister stating that the defendant spoke to A.D.

She confirmed that she told J.M., "[ y] ou have had five years, 1 have had two weeks

to process this." When confronted, the defendant denied the allegations of each

alleged victim. Mrs. Strain testified she never witnessed any inappropriate

behavior between the defendant and A.D. or R.P., and she was shocked by the

allegations against her husband.

As noted, RR' s mother, J. M., also testified at the trial. J. M. testified that

when he was ten and eleven years old, R.P. would cry a lot at night, would want to

sleep with her, and would have random " crying fear spells." J.M. confirmed that

in 2012, while they were conversing at a restaurant about claims against the

defendant made by her adopted sister, R.P. first told her that the defendant had

done something to him. J. M. did not comply with RR' s request to keep it a secret,

but instead told her sister, K.L., and eventually her husband. R.P. ultimately

threatened to never speak to J. M. again if she continued to speak about it. Thus,

J.M. made the decision to " keep [ her] son" and keep quiet about the issue. 13

The final witness at trial, Dr. Scott Anthony Benton with the University of

Mississippi Medical Center, testified as an expert in the field of child abuse

pediatrics. Dr. Benton confirmed that most children who have been sexually

abused do not immediately disclose the abuse. He noted that the state of

Mississippi had received tens of thousands of cases per year that were delayed

disclosures. He noted that many victims have no concept of sex or homosexual

activity and are not prepared for what happened to them. He further confirmed that

13 J. M. confirmed that she started recording her phone calls in March of 2018, after she learned about the FSI investigation of the defendant.

1s external factors, such as the grooming process, bribes, or threats, and internal

factors, such as the fear of homosexuality and embarrassment, could cause a victim

to not disclose the abuse. Dr. Benton also testified that it was very common for

victims to recant after a disclosure, stating, "[ w] ell, children naively, and

sometimes even adults, think that if I take it back everything resets to zero ...

that' s the hope when they take it away or at least they' ll leave me out of the

process." Dr. Benton noted that many of the victims testifying at the defendant' s

trial consistently stated that they had no concept of sex or homosexual activity

when the abuse began, which Dr. Benton called " the concept of naivete" that is

typical of children. Based on his assessment of A.D.' s trial testimony, Dr. Benton

believed that at fifteen years old, A.D.' s experience was unexpected, as he was

naive" and " had no knowledge or preparation" for the abuse A.D. described at

trial. Dr. Benton further testified that the consequences of the acts often lead to

various psychiatric and psychological disorders, alcoholism, and substance abuse.

We reiterate that the defendant, in addition to challenging A.D.' s credibility,

challenges the sufficiency of the evidence of aggravated incest on counts five and

seven based on his relationship by marriage with the victims in those counts, R.P.

and A.D. Specifically, the defendant argues that pursuant to former La. R.S.

14: 78. 1, the crime of aggravated incest (now incorporated into the broader crime of

aggravated crime against nature) applied to relationships by blood, not by

marriage. As the defendant concedes, the Louisiana Supreme Court has addressed

relationships of affinity in the context of aggravated incest.

In State v. Ardoin, 09- 0578 ( La. 5111110), 35 So. 3d 1065 ( per curiam), the

defendant therein was convicted of the aggravated incest of his wife' s niece, and

thus, the defendant' s niece by marriage. The defendant argued on appeal that he

was not related to the victim, as a biological, step, or adoptive relative. The

Louisiana Supreme Court stated.

16 B] ecause aggravated incest encompasses not only biological and adoptive relationships but also step relationships, the crime is one of both consanguinity and affinity. See Black's Law Dictionary 1413 ( 6th ed. 1990)( the word " step-" "[ w] hen used as [ a] prefix in conjunction with a degree of kinship, is repugnant to [ a] blood relationship, and is indicative of a relationship by affinity."); Black's Law Dictionary 67 9th ed. 2009)( affinity is "[ t]he relationship that one spouse has to the

blood relatives of the other spouse; relationship by marriage.").

Ardoin, 09- 0578 at p. 4, 35 So. 3d at 1067. As the Ardoin court further stated,

t]he doctrine of affinity grew out of the canonical maxim that the husband and

wife are one. It is the relationship which arises, in consequence of marriage,

between one spouse and the blood relatives of the other. Thus, the husband stands

in the same degree of affinity to his wife' s blood relatives as she stands to them by

consanguinity, and vice versa." Ardoin, 09- 0578 at p. 4, 35 So. 3d at 1068

citation omitted).

The language of former La. R.S. 14: 78. 1( A) specifically included " step"

relations, which clearly indicated that relatives by marriage were included in the

offense. When the legislature repealed La. R.S. 14: 78. 1 and amended La. R. S.

14: 89. 1 to include the crime of aggravated incest under the broader crime of

aggravated crime against nature, it again specifically included " step" relations in

the scope of the crime. See 2014 La. Acts, No. 177, §§ 1 and 2; 2014 La. Acts,

No. 599, § 1. Thus, we disagree with the defendant' s contention that this issue

should be revisited based on the incorporation of the offense into the crime against

nature offense. The evidence establishes that the defendant was aware of his

familial relationship with the victims and used it to his advantage in engaging in

prohibited touching of both R.P. and A.D. Further, the testimony presented at trial

showed that both R.P. and A.D. were under the age of eighteen years old when the

acts occurred.

Likewise, this court disagrees with the defendant' s challenge of the

sufficiency of the evidence of sexual battery on count eight based on the argument

17 that the touching of the " groin" is not a prohibited act under La. R.S. 14: 43. 1. As

the Louisiana Supreme Court noted in Statey. Layton, 14- 1910, p. 7 ( La. 3117/ 15),

168 So. 3d 35$, 361- 62 ( citing La. C.E. art. 412 Comments -1998), La. R.S.

14: 43. 1 is among the statutes that proscribe " sexually assaultive behavior."

Sexually assaultive behavior" is a general expression intentionally used by the

legislature in order to reference a broad range of behavior not limited by any list of

technical" statutory definitions. La on, 14- 1910 at p. 7, 168 So. 3d at 362.

Noting that the term " sexually assaultive behavior" is not defined by the statute at

issue in that case, La. C.E. art. 412. 2, the La on court looked to the federal rule

that inspired the legislature to draft Article 412.2. Specifically, the court noted that

under Rule 413 of the Federal Rules of Evidence, a sexual assault is defined as

any conduct prohibited by 18 U.S. C. chapter 109A." La on, 14- 1910 at p. 6 n. 5,

168 So. 3d at 361 n.5. In accordance with 18 U.S. C. chapter 109A, 14 " sexual

contact" is defined as " the intentional touching ... of the genitalia, anus, groin,

breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate,

harass, degrade, or arouse or gratify the sexual desire of any person." ( Emphasis

added.) See La on, 14- 1910 at p.6 n. 5, 168 So. 3d at 361 n.5 ( citing 18 U.S. C. §

2244 and 18 U.S. C. § 2246( 3)'). Applying the Layton analysis to the instant case,

we find that the touching of the groin falls squarely within the definition of sexual

battery in La. R.S. 14: 43. 1( A)( 1). Thus, we are not persuaded by the defendant' s

argument that evidence of touching A.D.' s groin was insufficient to convict him of

sexual battery against A.D.

14 Chapter 109A, titled " Sexual Abuse," consists of 18 U. S. C. §§ 2241- 2248. Although not mentioned by the court in La on, we further observe that 18 U. S. C. § 2246( 3) includes a reference to the intentional touching being " either directly or through the clothing" in the definition provided in that statute.

18 Furthermore, the verdicts rendered in this case indicate that the jury rejected

the defendant' s theory that A.D. lacked credibility. A.D. admitted that he

previously recanted his claim, explained why, and maintained that he was being

truthful at trial. Additionally, the jury heard expert testimony regarding the

commonality of recantations and delayed disclosures. In reviewing the evidence

presented at trial, we cannot say that the jury' s determination was irrational under

the facts and circumstances presented. See State v. Ordodi, 06- 0207, p. 14 ( La.

11129106), 946 So. 2d 654, 662.

ASSIGNMENTS OF ERROR NUMBERS 1- 4: 16 ADMISSION OF OPINION TESTIMONY

In assignments of error numbers two through four, the defendant argues that

the trial court erred in admitting opinion testimony of three witnesses. First, in

assignment of error number two, he notes that he filed a pretrial motion to exclude

and/ or limit expert testimony by Thomas Mitchell regarding M.F.' s Post -Traumatic

Stress Disorder { PTSD} diagnosis and argues that Mitchell' s testimony was

presented as " subterfuge for speaking to the ultimate question of fact[.]" He

argues the State introduced the expert testimony regarding M.F.' s diagnosis to

prove that sexual abuse occurred. In assignment of error number three, he argues

that the trial court erred in admitting opinion testimony by a lay witness, Agent

Hoffine, to bolster M.F.' s credibility. In assignment of error number four, he

argues the trial court erred in admitting prejudicial text messages between Mrs.

Strain and her sister, J.M.

In assignment of error number one, the defendant challenges the trial court' s denial of his motion for new trial in conjunction with assignments of error numbers two through seven that raise various grounds for a new trial. In addressing the grounds for new trial raised on appeal, where appropriate, this court has combined some assignments of error based on the nature of each ground.

19 2): Thomas Mitchell (Assignment ofError #2).-

Prior to trial, the State filed an initial and supplemental " Notice of Expert"

regarding its intent to present testimony by Thomas Mitchell, a licensed counselor

and the executive director of the Children' s Advocacy Center Hope House, as an

expert in the field of mental health disorder counseling and PTSD. The defendant

subsequently filed a " Motion to Exclude, or, in the Alternative, to Limit Expert

Testimony." At a pretrial hearing, with regard to Mitchell, defense counsel argued

that evidence of the PTSD diagnosis was inadmissible under Statey. Chauvin, 02-

1188, p. 9 ( La. 5120/ 03), 846 So. 2d 697, 703, to show sexual abuse by the

defendant occurred. The State argued evidence of the PTSD diagnosis is

admissible under Chauvin if the defendant attacks a witness' s credibility to show

why a victim may behave a certain way. The trial court took note of the fact that

M.F.' s credibility would be attacked at trial based on his criminal record and that

the State would use the PTSD evidence to rehabilitate M.F. The parties initially

agreed that the State could introduce the diagnosis without implying that the

condition was caused by abuse by the defendant. After additional argument, the

trial court reiterated that at trial Mitchell would not be allowed to link the PTSD to

sexual abuse or to specify that the allegation of abuse pertained to the defendant.

During the trial, prior to Mitchell' s testimony, the State asked the court to

revisit its ruling. The State argued that defense counsel suggested multiple times

that M.F.' s statements were inconsistent and that he was motivated by a lawsuit.

The State further argued that during opening statements, defense counsel

erroneously claimed that a State expert was not advised of any penetration.

Defense counsel countered that Mitchell was not a fact witness and argued that his

testimony would usurp the jury' s function. In reversing its pretrial ruling limiting

Mitchell' s testimony, the trial court, in part, noted that when the initial ruling was

made, it was unaware that the defendant would elicit testimony to challenge the

20 motivation of the witness as a primary defense. The trial court set aside its prior

ruling based on the fact that Mitchell actually provided treatment to M.F.

At trial, Mitchell was qualified as an expert in diagnosing PTSD for the

purpose of mental health disorder counseling. During his trial testimony, Mitchell

defined PTSD as a human response to a life-threatening or extremely traumatic

stressor. He further testified that PTSD causes avoidance, anxiety, and

hypervigilance. He stated that M.F. became his client on July 9, 2419, after a

referral regarding an individual experiencing severe distress and challenges.

Mitchell further testified that based on a " clinically structured interview" and self-

reported assessment by M.F., it was clear that he was dealing with a case of PTSD.

He noted that M.F. identified that he had been the victim of sexual abuse by

another male, whom he identified as the defendant, and described in generalities

the abuse he experienced. Despite some avoidance, M.F. subsequently disclosed

that the abuse consisted of oral, anal digital penetration, and anal penile

penetration. Mitchell noted that while M.F. also disclosed physical and verbal

abuse by his father, he had a higher amount of sensitization (severe panic, distress,

outbursts of anger, irritability, and sobbing) while talking about the sexual abuse.

Mitchell described M.F. as one of the worst cases of PTSD that he ever treated

based on M.F.' s intense state of pain and suffering, and because he met almost

every PTSD diagnostic criterion. He noted that M.F. suffered from nightmares

among other symptoms. Mitchell observed M.F. testifying in court and noted that

he saw him using one of the breathing exercises that he taught him. PTSD was

MitchelI' s provisional and final diagnosis.

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

21 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. C. E. art. 702( A). Testimony in the form of

an opinion or inference otherwise admissible is not to be excluded solely because it

embraces an ultimate issue to be decided by the trier of fact. La. G. E. art. 704.

However, in a criminal case, an expert witness shall not express an opinion as to

the guilt or innocence of the accused. La. C. E. art. 704. The credibility of a

witness may not be supported unless it has been attacked. La. C. E. art, 607( B).

In Chauvin, the defendant was convicted of indecent behavior with

juveniles. Chauvin, 02- 1188 at p. 1, 846 So. 2d at 698. At trial, the State

presented the expert testimony of a licensed clinical social worker who testified

that one of the victims was diagnosed with PTSD. Id. at p. 3, 846 So. 2d at 699.

The social worker then testified that the symptoms of PTSD were consistent with a

child who had been sexually abused. Id. at p. 4, 846 So. 2d at 700. The Chauvin

court found that PTSD is sufficiently recognized in the medical, and particularly

the psychiatric, community to be considered as the proper subject of expert

testimony. Id. at p. 11, 846 So. 2d at 704. However, the court further found that

there was no evidence in the record that the trial court performed its " gatekeeping"

function of determining that the social worker' s testimony was relevant and

reliable " as substantive proof that sexual abuse occurred." Id. at p. 12, 846 So. 2d

at 705. The court stated, "[ w] e are concerned about the use of PTSD evidence as

substantive evidence that sexual abuse has occurred, when such evidence is not

limited to explaining ` superficially bizarre' reactions common to victims of child

sexual abuse but which are uncommon to the experience of jurors." Id. at pp. 14-

15, 846 So. 2d at 707.

The Chauvin court noted that there was no evidence in that case that the

victims recanted their allegations. Further, although the defense showed there had

22 been a slight delay between the date of the incidents and the reporting to the police,

the State did not limit the testimony in an attempt to explain delayed reporting.

Thus, under these circumstances, the court found that the State introduced the

expert testimony regarding the victim' s diagnosis of PTSD for the purpose of

substantively proving that sexual abuse occurred. The court held that the evidence

of the victim' s PTSD diagnosis should be admissible only for the limited purpose

of explaining, in general terms, certain reactions of a child to abuse that would be

used to attack the victim/ witness' s credibility. Id. at pp. 16- 18, 846 So. 2d at 708-

09.

In State v. Griffin, 15- 1765, p. 10 ( La. App. Ist Cir. 4127116), 2016 WL

2840309, * 6, this court found the testimony of a nurse practitioner proper where

there was a " critical difference" between her testimony and that at issue in

Chauvin. In Griffin, this court noted the nurse practitioner did not " rely upon a

collateral diagnosis, such as ... PTSD, to conclude a finding of sexual abuse." Id.

Further, the nurse practitioner did not " definitively state" the victim had been

sexually abused, but instead agreed with the State " that her observations of the

victim' s demeanor, as well as the physical findings, were ` consistent with a child

who has been abused,' even with a normal physical examination." Id. This court

found the testimony " had a twofold effect outside of simply serving to bolster the

victim' s credibility," Id. at p. 11, 2016 WL 2840309 at * 6. First, the testimony

served to demonstrate that victims of childhood sexual trauma " often do not

present signs of physical trauma from the abuse." Id. Second, the general

description of delayed reporting assisted the jury in understanding the

superficially bizarre' circumstances" in the case. Id.

Similarly, in the instant case, Mitchell did not use the PTSD diagnosis to

conclude that M.F. suffered from sexual abuse. Unlike the victims in Chauvin, in

this case M.F. was cross- examined about previous denials as to the occurrence of

23 specific acts and his significant delay in reporting certain claims. Thus, Mitchell' s

testimony was introduced to assist the trier of fact in understanding the victim' s

delayed disclosure of the abuse. The State did not offer the testimony to prove

sexual abuse, but instead to explain the behavior of victims of childhood trauma

and to assist the jury in understanding such reactions as delayed or inconsistent

reporting and avoidance. We find no error in the trial court' s admission of the

testimony by Mitchell.

However, we note that Mitchell named the defendant as the perpetrator of

the sexual abuse claims, described M.F, as having one of the worst cases of PTSD

he has ever treated, and stated that the PTSD symptoms were heightened when

M.F. discussed the claims against the defendant as opposed to other traumatic

experiences. Nonetheless, even if we were to conclude that the testimony crossed

the line discussed in Chauvin and Griffin, we find any error in the admissibility of

the testimony harmless in this case. The proper analysis for determining harmless

error " is not whether, in a trial that occurred without the error, a guilty verdict

would surely have been rendered, but whether the guilty verdict actually rendered

in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S.

275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d 182 ( 1993); See also State v.

Johnson, 94- 1379, p. 14 ( La. 11127195), 664 So. 2d 94, 100- 01 (" Trial error occurs

during the presentation of the case to the trier of fact and may be quantitatively

assessed in the context of the other evidence to determine whether its admission at

trial is harmless beyond a reasonable doubt."). M.F. testified in great detail and

did so consistently regarding the abuse he suffered by the defendant. He readily

admitted that, as an adult, he used the abuse to induce the defendant to do things

for him. Given the more substantial evidence properly admitted against defendant,

we find any error in the admission of the testimony of Mitchell harmless beyond a

24 reasonable doubt. See State v. Mullen, 18- 0643, p. 21 ( La. App. 1 st Cir. 12121118),

269 So. 3d 772, 786- 87, writ denied, 20- 00408 ( La. 1016120), 302 So. 3d 529.

Agent Hoffine (Assignment ofError #3):

The defendant complains that the following testimony demonstrates Agent

Hoffine' s articulation of improper and prejudicial opinions of M.F.' s differing

accounts:

Q. Just to be clear, did [ M.F.] always say that [ the defendant] placed his penis in his anus?

A. No. The first time in [ prison] when we interviewed him he stated that he was digitally and penile [ sic] penetration is what he stated. But he wouldn' t go into any details regarding that. And unfortunately in order for us to meet statutory requirements we have to ask for those details to find out whether or not there was true penetration, however slight.

Q. You are aware that prior to that interview he had been interviewed by Janetta Michaels not talking about penetration, correct?

A. Correct. And I reviewed that video and what I observed in the video itself, and this is not a slight to Janetta' s professionalism in any way, shape, or form, due to the fact that he was in prison and she is a civilian and not a sworn law enforcement officer she had to have someone present with her at the jail, which was Agent Wayne Horner, who again is a male. And he' s not a meek male. And also present at the jail were three other additional males observing.

Q. Agents, correct?

A. Agents.

Q. So we are in a jail with other males present. Now, males aren' t always a problem, correct?

A. No. But remember that [ M.F.] --

DEFENSE COUNSEL]: Objection.

After the trial court overruled the objection, Agent Hoffne further explained:

A. Well, certain victims, and [ M.F.] being one of them, he had an association of penile penetration associated with homosexuality in his mind. So with four men present even with a forensic interviewer he is still going to have to overcome that in order to say it out loud.

25 The defendant further argues Agent Hoffine " opined extensively on various

points" of corroboration of both M.F.' s and RR' s accounts. The defendant

provides a record cite that includes the following colloquy regarding R.P.:

Q. How did you establish a relationship with [R.P.]?

A. [ R.P.] was difficult to establish a relationship with. And in part, see, the first interaction he had with the FBI in the gas station, that' s a very unfortunate location for an interview to discuss any sexual abuse. R.P.] specifically struggled at length with his wavering of

cooperation, do I want to cooperate or not. And that' s distinctly tied to it' s essentially a destruction of his family. The amount of pressure that [ R.P.] was under strictly because of where he is, I mean, his aunt is —

Q. I don' t want you to go into his mental state and his own struggles, but just what the two of you discussed. You can' t opine about his internal thoughts.

A. Understood.

Q. So was he expressing to you at times wanting to cooperate and not wanting to cooperate?

A. Yes.

The defendant further provides a record cite that contains the following

testimony regarding RR' s disclosure to his mother at a restaurant:

Q. And importantly, one of the important things, other than -- I don' t want to get into all of the confronting [ the defendant] and all of that, that' s already happened -- but importantly towards the end of the text messages as playing out in realtime between two sisters fighting about what' s kind of happening, did you obtain additional independent corroboration, if believed, from the phone of [J. M.] that talks about

how long ago that she' s known.?

A. Yes. She says she has known for five years. It' s 2017. It

corroborated the date that they told us ... about that they had met at the Chimes in 2012.

The testimony of a lay witness in the form of opinions or inferences, who is

not testifying as an expert, is limited to those opinions or inferences that are

rationally based on the perception of the witness and are helpful to a clear

understanding of the testimony or the determination of a fact in issue. La. C. E.

art. 701. A reviewing court must ask two questions to determine whether the trial

26 court properly allowed lay opinion testimony: 1) was the testimony speculative

opinion evidence or simply a recitation of or inferences from facts based upon the

witness' s observations; and 2) if erroneously admitted, was the testimony so

prejudicial to the defense as to constitute reversible error. State v. Morgan, 12-

2060, p. 14 ( La. App. 1st Cir. 6/ 7/ 13), 119 So. 3d 817, 527.

The defendant argues that Agent Hoffine' s testimony consisted of improper

lay opinion testimony that served to bolster the credibility of M.F. and R.P. At the

outset, we note that there was no contemporaneous objection to the testimony

regarding RR' s wavering on his level of cooperation or the corroboration for the

date that he disclosed the abuse to his mother. An irregularity cannot be availed of

after the verdict unless it was objected to at the time of the occurrence. La. C. Cr.P.

art. 841( A). The contemporaneous objection rule has two purposes: to put the trial

judge on notice of the alleged irregularity so that he may cure the problem, and to

prevent the defendant from gambling on a favorable verdict and then resorting to

appeal on errors that might easily have been corrected by an objection. State v.

Lanclos, 07-0082, 07- 0716, p. 6 ( La. 418108), 980 So. 2d 643, 648. Accordingly,

the defendant did not properly preserve for appellate review these portions of

Agent Hoffine' s testimony. Moreover, regarding M.F., we note that Agent Hoffine

did not give a direct opinion as to whether or not penetration occurred. She instead

made natural inferences based on the circumstances of the interview. It is well

settled that a lay witness is generally permitted to draw reasonable inferences from

his or her personal observations. If the testimony constitutes a natural inference

from what was observed, no prohibition against it as the opinion of a non -expert

exists as long as the lay witness states the observed facts as well. State v. LeBlanc,

05- 0885, p. 7 ( La. App. 1st Cir. 2/ 10/ 06), 928 So. 2d 599, 603. Thus, we find no

error in the admission of Agent Hoffine' s testimony regarding M.F.

27 Text Messages (Assignment ofError #4):

Finally, the defendant argues that text messages between Mrs. Strain and her

sister, J.M., contained impermissible opinionated statements. While Mrs. Strain

was on direct examination, the trial court sustained defense counsel' s objections to

the State' s attempt to elicit testimony from Mrs. Strain regarding her knowledge of

the potential victims, from whom she learned of the potential victims, and whether

or not she and her sister communicated about confronting the defendant. During a

bench conference, the State indicated that it was going to inquire about text

messages between Mrs. Strain, her sister, and the defendant, specifically

conversations in which Mrs. Strain became aware of R.P.' s allegations. Defense

counsel argued the text messages were prejudicial where Mrs. Strain' s opinion or

skepticism as to the defendant' s guilt was irrelevant and the messages contained

hearsay. Based on the timing of the messages and the State informing the court

that the messages did not contain an opinion as to the defendant' s guilt or

innocence, the trial court reversed its prior ruling sustaining the defense counsel' s

objection and found the text messages admissible.

Mrs. Strain testified that when her sister, J. M., told her that R.P. had

reported sexual abuse to the FBI, J. M. asked her not to tell the defendant. Mrs.

Strain stated that she repeatedly asked J.M. for permission to talk to her husband

about the claims. As the two sisters had heated discussions regarding the claims,

the following text messages were exchanged:

Mrs. Strain: My life is destroyed no matter where I stand Quit getting pissy with me

J. M.: Yep.. others Too!!!!

Mrs. Strain: Not yours

J.M.: Ohhh ok..f*** Leave off ... me alone with this now too ... U got the info u need ... Ur right no more family...

28 Mrs. Strain: You were never going to support anyone but yourself. Never understood what u wanted from me.

J.M.: Ohhh yea right... I kept my mouth shut for 5 years ... Only opened it because of it becoming an issue - should have let u get surprised by this when they showed up at ur door..ur a selfish bitch I want nothing?!! Done! Ur pissed at the wrong person sister

Mrs. Strain: Exactly u have had 5 yrs I' ve had two weeks I am sorry J. M.) I am not angry just frustrated.

At trial, Mrs. Strain confirmed that she was not stating an opinion as to

whether or not she believed the claims against her husband but was instead only

stating that she had not had time to process the claims. We disagree with the

defendant' s argument that the text messages contained inadmissible opinions. To

the contrary, based on our review, we find that the text messages did not consist of

speculative opinions. Thus, we agree with the trial court' s assessment that no

reasonable juror could have interpreted the text messages as an opinion as to

whether or not the defendant was guilty or innocent.

Considering the above analyses, we find no merit in assignments of error

numbers two, three, and four. We further find no merit in assignment of error

number one, in so far as the motion for new trial was based on the admission of

above discussed evidence.

ASSIGNMENTS OF ERROR NUMBERS I & 5: ADMISSION OF HEARSAY

In assignment of error number five, the defendant argues the trial court

improperly admitted hearsay testimony regarding a phone conversation between

J. M. and her son R.P., in which R.P. expressed anger over what the defendant " did

to [ him]." The defendant notes that the trial court found that the defense had put

RR' s motive at issue in ruling that the State would be allowed to question J.M.

regarding the content of the phone conversation. The defendant concludes that the

trial court erred in admitting highly prejudicial hearsay testimony by J.M.

regarding statements by R.P. to prove the truth of the matters he asserted. 29 Hearsay evidence is evidence of an out- of-court, unsworn, oral or written

statement made by a person other than the testifying witness that is offered for the

truth of its content. La. C. E. art. 801( C); State v. Moore, 18- 0343, p. 6 ( La. App. 1 st Cir. 9121118), 2018 WL 4520543, * 4, writ denied, 18- 1813 ( La. 4115/ 19), 267

So. 3d 1130. Hearsay is inadmissible unless it falls within an exception. La. C. E.

art. 802.

Louisiana Code of Evidence article 803 provides, in pertinent part, that the

following is not excluded from evidence by the hearsay rule:

3) Then existing mental, emotional, or physical condition.

A statement of the declarant' s then existing state of mind, emotion, sensation, or physical condition ( such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the

declarant' s then existing condition or his future action. [ Emphasis added.]

Evidence to prove the declarant' s state of mind can be used to prove the

declarant' s subsequent conduct. See La. C. E. art. 803( 3). The length of time

between the making of the statement and the conduct in question does not

determine the admissibility, but rather goes to the weight of the evidence. State v.

Lee, 559 So. 2d 1310, 1319 ( La. 1990), cert.. denied, 499 U.S. 954, 111 S. Ct. 1431,

113 L.Ed.2d 482 ( 1991).

A state of mind declaration is relevant if it tends to make the existence of

any consequential fact more or less probable than it would otherwise be without

the evidence. See La. C. E. art. 401. Nevertheless, relevant declarations may be

legally inadmissible if their probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misapplication by the jury.

See La. C. E. art. 403; State v. Brown, 562 So. 2d 868, 878 ( La. 1990).

Extrajudicial statements of a declarant' s subjective fear or revulsion have

considerable probative value in circumstantially explaining the declarant' s

subsequent conduct. Even when the declarant' s state of mind is not the ultimate

a proposition to be proven, the declaration may be used as circumstantial evidence of

the declarant' s behavior by providing an intermediate basis for further inferences

about declarant' s conduct. Where extrajudicial declarations are offered to show

the declarant' s state of mind or intent to undertake a course of action, when the

communication indicates the act is dependent upon an event or upon acts of

another, the contingency operates only to reduce the probative force ( weight) of the

evidence, not its admissibility. State v. Ulfers, 07- 0832, p. 38 ( La. App. 1st Cir,

2/ 8/ 08), 2008 WL 441488, * 20, writ denied, 08- 1100 ( La. 1/ 16/ 09), 998 So. 2d 90.

Herein, prior to testimony by Mrs. Strain and R.P., the State presented

argument under La. C. E. art. 803( 3) regarding the admissibility of a recorded

phone conversation between R.P. and J.M. The State argued the statements

consisted of R.P.' s spontaneous expression of his then existing mental, emotional,

and physical condition at the time and were admissible to rebut the defense' s claim

that R.P. was blackmailed into making the claims against the defendant. The State

noted R.P. would be available for cross- examination. Defense counsel argued the

State' s argument was flawed because the phone call took place on March 27, 2018,

after R.P. had already met numerous times with the investigating agents. Defense

counsel further argued that the evidence was being used to prove a fact in dispute

that R.P. was abused by the defendant) and therefore consists of inadmissible

hearsay. The trial court ruled the recording inadmissible due to the lapse in time

between the phone call and RR' s interview with law enforcement in 2017.

the trial court However, during the State' s direct examination of J.M.,

overruled defense counsel' s objection to the State eliciting testimony regarding

R.P.' s statements during the phone call at issue. As specifically noted by the

defendant in his appeal brief, the following exchange between the State and J. M.

then took place on direct examination:

Q. And what was that, what did [ R.P.] call to tell you?

31 A. That he was " f****** mad" was his words. " I am f****** mad. I am f* * * *mad * *at all of them. No, Mom, I' m f* * * mad * * * at him. He should not have done what he did to me." And he was

screaming and crying at the top of his lungs saying, " He should not have done this, he' s the one who f****** did this."

Thus, the admission of testimony regarding the recording, not the recording itself

which was ruled inadmissible, is at issue on appeal.

Initially, we recognize that the length of time between when the statements

were made by R.P. in the phone call and the conduct in question ( the alleged

abuse) goes to the weight of the evidence, not its admissibility. See Lee, 559 So.

2d at 1319. We further find that the defense put RR' s state of mind at issue.

Specifically, as noted in the context of the sufficiency of the evidence assignment

of error, defense counsel cross- examined R.P. regarding a prior phone call wherein

RP. mentioned feeling " blackmailed." After listening to the recording of that prior

call, R.P. admitted to telling his mother during that phone call that he felt the FBI

was blackmailing him into providing pedophile information against the defendant

based on his involvement with the work release program. Hence, the testimony

regarding a separate phone call with J. M. that occurred a few months later, wherein

R.P. expressed anger towards the defendant and his belief that the defendant

should pay" was introduced to counter the defense narrative that R.P. was being

17 pressured by the FBI to testify. Moreover, we find that the relevancy and

probative value of the statements at issue far outweighed the danger of the jury

misusing the evidence. The trial court properly ruled J.M.' s testimony regarding

statements by R.P. admissible to show RR' s state of mind. Thus, assignment of

error number five and assignment of error number one, to the extent that the

defendant argues a new trial was warranted on the basis of the admission of

17 We note that J. M.' s testimony is cumulative of RR' s testimony. R.P. testified prior to J. M. about the emotional phone call with his mother wherein he stated, in part, "[ the defendant] needs

to pay." 32 hearsay evidence, are without merit.

ASSIGNMENTS OF ERROR NUMBERS 1 & 6: DENIAL OF JURY' S RE UEST TO VIEW EVIDENCE

In assignment of error number six, the defendant argues the trial court erred

in denying the jury' s request during deliberations to view text messages between

the defendant and R.P., S. K., and V.K., which were admitted into evidence as

defense exhibits. He argues the text messages were not testimonial and were not

offered to prove the truth of their contents but, rather, to show the frequency in

communication, their friendly tone, and the nature of the relationships at issue. He

further argues they are of great relevance and notes they concerned present events,

similar to Yes gestae statements?

Louisiana Code of Criminal Procedure article 793( A), in pertinent part,

provides:

A] juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

The general rule as expressed by Article 793 is that the jury is not to inspect

written evidence except for the sole purpose of a physical examination of the

document itself to determine an issue that does not require the examination of the

verbal contents of the document. Thus, jurors may inspect physical evidence in

order to arrive at a verdict, but they cannot inspect written evidence to assess its

verbal contents. State v. Perkins, 423 So. 2d 1103, 1109- 10 ( La. 1982); State v.

Washington, 11- 0327, p. 5 ( La. App. 1st Cir. 514112), 2012 WL 1580939, * 3, writ

denied, 12- 1730 ( La. 411113), 110 So. 3d 138.

Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participant See State v. Brooks, 01- 0785, p. 3 ( La. 1114103), 838 So. 2d 725, 727.

33 Herein, the jury sent a note during deliberations stating, " We request all

evidence." The State argued that written evidence shall not be permitted under the

Louisiana Code of Evidence and objected to the submission of any written evidence. The defendant argued that the text messages were nonverbal, noting

they are full of photos. The trial court sustained the State' s objection, finding that

the pictures of text messages were a form of written communication.

Subsequently, the jury made another request asking, " Can we see all exhibits

showing text messages?" The trial court denied the request, explaining that written

evidence could not be sent back into the jury room for review.

We agree with the trial court' s assessment and interpretation of the law. The

jury' s sole purpose for viewing these exhibits would be for the impermissible

examination of their verbal contents. See State v. Caminita, 16- 0121, p. 10 ( La.

App. 1st Cir. 9/ 16/ 16), 203 So. 3d 1 t00, 1108, writ denied, 16- 2045 ( La. 916/ 17),

224 So. 3d 988. We find the trial court did not err in refusing to allow the jury to

view these exhibits during deliberations. Thus, we find no merit in assignment of

error number six or assignment of error number one to the extent that it challenges

the trial court rulings on the jury' s deliberation requests.

ASSIGNMENTS OF ERROR NUMBERS I & 7: GRANTING POTENTIAL WITNESSES' MOTION TO QUASH SUBPOENAS

In assignment of error number seven, the defendant argues the trial court

erred in quashing the subpoenas for three defense witnesses, Terry King, Richard

Franzo, and Gary Leonard. The defendant concludes that given the " gross

inconsistencies" in M.F.' s allegations, testimony by one or more of these

individuals would reveal additional inconsistencies for impeachment purposes.

A defendant' s right to compulsory process for obtaining witnesses on his

behalf is embodied in both the federal and state constitutions and in the statutory

law of this state. See U.S. Const. amend. VI; La. Const. art. I, § 16. The court

34 shall issue subpoenas for the compulsory attendance of witnesses at hearings or

trials when requested to do so by the State or the defendant. La. C. Cr.P. art. 731.

The right of a defendant to compulsory process includes the right to demand

subpoenas for witnesses and the right to have them served. State v. Latin, 412 So.

2d 1357, 1361 ( La. 1982). In order for the defendant to show prejudicial error, he

must demonstrate the testimony the witness might give which would be favorable

to the defense and which would indicate the possibility of a different result if the

witness were to testify. State v. Jarrell, 07- 0412, p. 24 ( La. App. 1st Cir. 9/ 19/ 07),

2007 AVL 2726718, * 13, writ denied, 07- 2065 ( La. 3/ 7/ 08), 977 So. 2d 897.

Herein, the potential witnesses moved to quash the subpoenas based on

relevancy and admissibility. Counsel on behalf of the witnesses noted that the

defendant maintained that certain statements were made by one of the victims

M.F.) that were inconsistent with other statements made by that victim. The

witnesses' counsel further stated that neither the defendant nor the potential

witnesses knew what statements were made by the victim that were inconsistent

with other statements made by the victim. The witnesses' counsel further

explained that his clients contend that the statements that they were aware of were

consistent with statements made by M.F. as portrayed in the media. In response,

defense counsel contended that the witnesses made social media posts and gave

statements to the media indicating that M.F. told them " the same thing that he has

told the media." Further contending that M.F.' s media statements were

inconsistent with the information he provided to the investigating agents, defense

counsel argued the witnesses' testimony would be significant to the defense' s case.

The trial court noted that based on defense counsel' s argument, the potential

witnesses at issue would be no different than any family member or other person to

whom M.F. made statements that were consistent with his statements to the media.

Thus, the trial court granted the motion to quash the subpoenas.

35 We find there has been an inadequate showing as to what testimony the

potential witnesses might have given that would have been favorable to the

defendant and which would indicate the possibility of a different result if the

witnesses had testified. Accordingly, we find no prejudicial error related to the

absence of the potential witnesses at issue. Thus, assignment of error number

seven and the compulsory process basis for assignment of error number one lack

merit.

ASSIGNMENT OF ERROR NUMBER 10: DENIAL OF MOTION TO QUASH COUNTS 1 & 4 OF INDICTMENT

Finally, in assignment of error number ten, the defendant argues the charges

on counts one through four violate the constitutional prohibition against e x- post

facto laws and that the trial court erred in denying his motion to quash on this

basis. The defendant notes that the aggravated rapes charged in counts one

through four took place in 1978 through 1981, when the defendant was between

the ages of fifteen and eighteen years old.' y He contends that as a result of the

application of La. Ch.C. art. 857 and La. C. Cr.P. art. 875, both enacted after the

instant offenses occurred to provide for prosecution as an adult for offenses

committed as a child, the State no longer had the option to try him as a juvenile

and was, instead, statutorily required to try him as an adult, subjecting him to a

sentencing exposure of mandatory life imprisonment.

A defendant is to be triad and sentenced under the statute that was in effect

at the time he committed the crime. State _v. Bethley, 452 So. 2d 367, 370 ( La.

App. 1st Cir. 1984). Article I, § 10 of the United States Constitution and La.

Const. art. I, § 23 prohibit ex post facto application of the criminal law by the

State. State v. Everett, 00- 2998, p. 13 ( La. 5/ 14102), 816 So. 2d 1272, 1280. The

19 Counts one and four have the earliest possible slate of occurrence in accordance with the indictment. While the defendant contests counts one through four on appeal, below, he moved to quash counts one and four. Nevertheless, the range of dates on counts two and three are encompassed within the ranges provided on counts one and four.

36 United States Supreme Court has identified four categories of law that violate the

ex post facto prohibition: 1) any law that makes an action criminal that was

innocent when done before the passing of the law; 2) any law that aggravates a

crime or makes it greater than it was when committed; 3) any law that changes the

punishment and inflicts greater punishment than the law provided when the crime

was committed; and 4) any law that alters the legal rules of evidence and rewires

less or different testimony than was required at the time the offense was

committed, in order to obtain a conviction. Rogers v. Tennessee, 532 U.S. 451,

456, 121 S. Ct. 1693, 1697, 149 L.Ed.2d 697 ( 2001). In State ex rel. Olivieri v.

State, 00- 0172, 00- 1767, p. 15 ( La. 2/ 21/ 01), 779 So. 2d 735, 744, cert. denied, 533

U.S. 936, 121 S. Ct. 2566, 150 L. Ed.2d 730 ( 2001), the Louisiana Supreme Court

held that in determining whether there has been an ex post facto violation, the

analysis should focus on whether the new law redefines criminal conduct or

increases the penalty by which the conduct is punished, and not whether the

defendant has simply been disadvantaged.

Prior to trial, the defendant filed a motion to quash counts one and four of

the indictment, which was denied by the trial court, citing State ex rel. Coco, 363

So. 2d 207, 210- 11 ( La. 1978) ( holding that jurisdiction vests in the district court

for first-degree murder and aggravated rape when committed by a juvenile, fifteen

years or older, and that jurisdiction attaches where indictment is found or bill of

information is filed). At the time the aggravated rape offenses at issue were

committed,20 former La. R. S. 13: 1570( A)(5) ( repealed by Acts 1991, No. 235, §

17, effective 1992) provided for the initiation of prosecution in the district court of

juveniles, fifteen years of age or older, charged with having committed a " capital

crime, or a crime defined by any law defining attempted aggravated rape," and La.

0 The offenses at issue occurred prior to the enactment of the Louisiana Children' s Code in 1991.

37 R.S. 13: 1571. 1, et seq. ( the Juvenile Transfer Act -Act 568 of 1974 as amended by

Act 337 of 1975, also repealed in 1991, effective 1992) provided that juvenile

defendants, age fifteen years or older, could be tried as adults in the district court

provided transfer proceedings were conducted in the juvenile court in accordance

with the provisions of La. R.S. 13: 1571. 1. State v. Bowden, 406 So. 2d 1316,

1320 ( La. 1981). Even based on the earliest date in the indictment, the defendant

was over fifteen years old when the offenses were committed and thus was subject

to trial as an adult and a penalty of life imprisonment without parole.

As the defendant notes, 2008 La. Acts, No. 670, § 1, amended La. Ch. C. art.

857, by adding subsection ( C)( 2), as follows:

An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Art. 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he shall be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed.

Likewise, 2009 La. Acts, No. 670, § 2 amended La. C. Cr.P. art. 876 by

adding subsection ( B):

An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to [ Code of Criminal Procedure] Article 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction. If convicted, he may be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the time the offense was committed.

Both statutes were amended again by 2010 La. Acts, No. 805, §§ 1& 2 to provide

that such individuals shall be prosecuted as adults.

38 As the above enactments of 2008 La. Acts, No. 670 do not redefine criminal

conduct or increase the penalty by which it is punished, their application does not

run afoul of the prohibition against ex post facto laws. They simply allow the

courts to impose the term of incarceration that could have been imposed at the time

of the offense, had the defendant not avoided prosecution at that time, i.e., life

imprisonment without parole. See State v. Odoms, 11- 2092, pp. 8- 9 ( La. App. 1st

Cir. 6/ 8/ 12), 94 So. 3d 166, 171- 72, writ denied, 12- 1612 ( La. 2/ 22/ 13), 108 So. 3d

762 ( wherein this court addressed the same ex post facto claim raised by the

defendant herein; confirming that La. Ch.C. art. 857( C)( 2) prohibits offenders from

evading punishment for juvenile crimes, even if the offenses are not discovered

before adulthood, that could have been imposed at the time of the offense). We are

not persuaded by the defendant' s argument regarding his hypothetical prosecution

as a child despite him being old enough to be transferred to adult court when the

offenses were committed. As the Louisiana Supreme Court found in Coco, the

district court would have had jurisdiction over the defendant' s case had he been

tried when the offenses were committed. See Coco, 363 So. 2d at 210- 211. Since

the defendant could have been prosecuted as an adult and therefore subject to the

same sentences imposed herein, we find no ex post facto violation in this case.

Assignment of error number ten lacks merit.

CONVICTIONS AND SENTENCES AFFIRMED.