State Of Louisiana v. William Eugene Naulty

Opinion

R

Nelatka W

FEB 2 7Q

On Appeal from the

22nd judicial District Court In and for the Parish of St. Tammany State of Louisiana

Trial Court No. 1952- F- 2022, Section I

Jane C. Hogan Attorney for Appellant, Hammond, LA William Eugene Naulty

J. Collin Sims Attorneys for Appellee, Matthew Caplan State of Louisiana Covington, LA

HESTER, J.

The defendant, William Eugene Naulty, was charged by amended bill of information with sexual battery involving a victim under the age of thirteen ( Count 1) in violation of La. R.S. 14:43. 1( C)( 2) and indecent behavior with juveniles under

the age of thirteen ( Count 2) in violation of La. R.S. 14: 81( A)( 1) and ( H)(2). The

defendant pled not guilty to the charges. Following a jury trial, he was found guilty

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qipiipie ig lip

for post -verdict judgment of acquittal, both of which the trial court denied. The trial

court subsequently sentenced the defendant to twenty-five years imprisonment at hard labor on count one and two years imprisonment at hard labor on count two.

The trial court ordered the sentences on both counts to be served concurrently and without benefit of probation, parole, or suspension of sentence. The defendant now

appeals, alleging four assignments of error. For the reasons that follow, we affirm the convictions and sentences.

In October 2021, V.B. contacted the St. Tammany Parish Sheriff s Office and MMMMM =_ 49M,

they had been sexually abused by their mother' s boyfriend, the defendant.' The

victims indicated the incidents occurred years earlier when they were living with their mother and the defendant in Slidell. C.B. and J.B. were interviewed separately at the Children' s Advocacy Center (" CAU). Following an investigation, the defendant was arrested.

1 Initials are being used to protect the identity of the minors in this case. See La. R.S.

46: 1844( W)(3).

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In his first assignment of error, the defendant argues the evidence is

insufficient to sustain the convictions for sexual battery involving a victim under the age of thirteen and indecent behavior with ajuvenile. He argues that his convictions

are based on internally inconsistent statements from two young girls who admittedly

I0

1111 1; 11111111111

1• ii 1 16TIMmll 13=

insufficient evidence cannot stand, as it violates due process. See U.S. Const.

amend. XIV; La. Const. art. 1, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 ( 1979) and adopted by the Louisiana Legislature in enacting La. Code Crim. P. art. 821, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a

reasonable doubt. State v. Dunn, 2021- 0630 (La. App. 1st Cir. 12/ 22/ 21, 340 So. 3d 77, 83, writ denied, 2022- 00095 ( La. 4/ 5/ 22), 335 So3d 834.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Higgins, 2003-

us -i

163 L.Ed.2d 187 ( 2005). The trier of fact is free to accept or reject, in whole or in

part, the testimony of any witness. Moreover, 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. An appellate court will not reweigh the evidence to overturn a factfinder' s determination of guilt. State v. Jenkins, 2022- 0562 ( La. App. 1 st Cir. 12/ 22/ 22), 357 So. 3d 840, 844. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway,

Sexual Battery In count one, the defendant was found guilty of sexual battery of C.B.

Pursuant to La. R.S. 14: 43. 1( A)( 1) and ( 2), sexual battery is defined, in pertinent

part, as the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, when the offender acts without the consent of the victim or when the victim has not yet attained fifteen years of age and is at least three years younger than the offender. Sexual battery is a general intent crime. Thus, the only intent necessary to sustain a conviction is established by the very doing of the proscribed act. See

La. R.S. 14: 11; State v. Brown, 2020- 0150 ( La. App. I st Cir. 2/ 19/ 21), 2021 V&

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).

C.B. testified that her date of birth is July 23, 2010. At the time of trial, she

from visiting her maternal grandmother in Tennessee, the defendant had moved into their home in Slidell. During that time, her mother was employed as a nurse, and she worked a lot. In the mornings, as C. B. prepared for school, her mother would

leave for work and would not return until after she had arrived home from school. According to C.B., the defendant was at home with her and her siblings when their mother was away, and he often was the only adult there.

C. B. testified that the defendant inappropriately touched her vagina when she was approximately six years old. She indicated the touching only occurred when rd

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they were alone in a room. The first incident occurred when she was sitting on the edge of her bed. The defendant walked into the room, closed the door, walked over

to her, and grabbed her vagina over her clothes with one of his hands, which hurt

and was uncomfortable. Then he left the room without saying anything. C.B. was

C. B. also recalled a time when the defendant was sitting next to her on the living room couch and he placed his hand on her leg, so she scooted away. The

defendant scooted closer and grabbed her vagina over her clothes.

C.B. recalled another incident when no one else was in the kitchen, and the

defendant grabbed her vagina over her clothes. She was six years old at that time.

The last incident that C. B. could recall occurred after she had just woken up and went to the defendant' s room to ask him to make her something to eat. Her siblings were asleep, and her mother was not at home. The defendant got up, closed the

removed her clothes, sat behind her, reached over her shoulder, and grabbed her vagina with his hand. She testified he put his fingers inside her vagina, which hurt.

C.B. bit the defendant on his arm, which caused him to yank his arm back. Then she

got up, grabbed her clothes, and left the bedroom. During the last incident the defendant told her she deserved it because she was a bad kid, which convinced her that maybe she was bad and that some of this was her fault.

C. B. testified that after some of the incidents occurred, the defendant

instructed her not to tell her mother or anyone else; otherwise, he would hurt her. C. B. believed he was serious. According to C.B., she did not tell anyone about the

inappropriate touching because she was scared that either they would not believe her, they would become mad, or that the defendant would do something. After she was removed from her mother' s custody, the inappropriate touching ceased.

C. B. indicated when she returned to school in August 2021, she was bullied.

As a result, she began cutting her arm, resulting in her being admitted to Children' s Hospital in New OrleansWhile at the hospital, a doctor asked C. B. if she had been

sexually abused, and she responded in the negative. She explained the sexual abuse was not relevant to why she was in the hospital. C.B. further explained she was not familiar with the hospital staff. Therefore, she did not feel comfortable telling them about the sexual abuse. In 2021, C. B. told a friend about the sexual abuse after her

friend disclosed an experience she had with her own stepbrother. C. B., who was

eleven years old at the time, felt comfortable telling her friend and felt like the friend would believe her.

The first adult C. B. told about the abuse was the school counselor, who she

had been seeing regarding the bullying incidents. Thereafter, she told her paternal

testified she was honest about everything she stated the defendant had done to her

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when she was around six years old. C. B. explained that she came forward when

she felt comfortable that people would believe her, that it was not her fault, and that

C.B. further explained no one told her that she was going to be forced to move I Tennessee to live full-time with her mother and the defendant. C. B.' s testimony was consistent with her CAC interview.

On cross- examination, C.B. testified that everything she told the staff while at Children' s Hospital is accurate, except when she denied being sexually abused. C.B. testified that she did not tell J.B., who was older, about the abuse, noting: " I

didn' t know it happened to her, too. So, I just felt kind of singled out by it." She

2 At trial, Cally Huggins, a senior forensic interviewer at the CAC, testified for the State.

Ms. Huggins indicated that on November 15, 2021, she conducted separate forensic interviews of J.B. and C. B., which were recorded on audio and video. The interviews were played for the jury.

In

acknowledged that she told her grandmother that she did not want to move to Tennessee. C.B. indicated she wanted to stay in Slidell because of her relationship with her girlfriend,' and she did not want to hurt her mother' s feelings or make her

think she was a s.• • • when questioned -•. her motives •

coming forward, C.B. denied making up the allegations to avoid being separateN from her girlfriend.

At trial, C.B. testified regarding several incidents where the defendant intentionally touched her vagina in an inappropriate manner. She specifically

her clothes, grabbed her vagina with his hand, and put his fingers inside her vagina.

C.B. testified regarding two other occasions when the defendant touched her vagina through her clothes— once while she was alone in her bedroom and another time

while she was alone in the kitchen. These incidents occurred when they lived in Slidell and she was between the ages six and seven years old. At the time of the

thirty years old.' The record supports a finding that the State presented sufficient evidence at trial to establish each element of the offense of sexual battery for which the defendant was convicted.

Indecent Behavior with Juveniles

In count two, the defendant was found guilty of indecent behavior with juveniles, which is defined, in pertinent part, as the commission of "[a] ny lewd or

lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the

two persons" with the intention of arousing or gratifying the sexual desires of either

3 C.B. testified that in 2021, she was dating a girl. She indicated they would hang out together and do things like go skating.

4 According to the bill of information, the defendant' s date of birth is September 2, 1986.

Therefore, he was twenty-nine years old when he began dating C.B. and J.B.' s mother in 2016.

person. La. R. S. 14: 81( A)( 1). The Louisiana Supreme Court has defined " lewd and

lascivious conduct" very broadly as any conduct which is " lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to the sexual impurity or incontinence carried on in a wanton manner." See State v. Jones, 2010- 0762 (La. 9/ 7/ 11), 74 So.3d 197! 204. See also State v. Boudreaux, 2023- 0993 ( LI

So. 3d —, in which this court noted that " lewd" means lustful or indecent and

signifies that form of immorality that relates to sexual impurity carried on in a wanton manner and is identified with obscenity and measured by community norms for morality and that " lascivious" means tending to incite lust, indecent, obscene, and tending to deprave the morals in respect to sexual relations.

Indecent behavior with juveniles is a specific intent crime where the State

must prove the defendant' s intent to arouse or gratify his sexual desires by his actions

with a child.

State v. Hartley, 2023- 0698 ( La. App. lst Cir. 1/ 23/ 24), 2024 WL

242792, * 2 ( unpublished). Specific criminal intent is that state of mind that exists

when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14: 10( 1). Specific

intent need not be proven as a fact, It may be inferred from the circumstances of the transaction and the actions of the defendant. Specific intent is an ultimate legal

conclusion to be resolved by the factfinder. State v. McKinney, 2015- 1503 ( La. App. 1st Cir. 4/ 25/ 16), 194 So. 3d 699, 703, writ denied, 2016- 0992 ( La. 5/ 12/ 17),

J.B. testified that her (late of birth is May 30, 2007. At the time of trial, she was fifteen years old and in the tenth grade. Similar to her sister, J.B. testified that

her mother would sometimes already be gone before they woke up in the morning and would not return fromwork until after she arrived home from school. She

11.

agreed the defendant was home more often than their mother and that he was often

the only adult in the home.

J.B. testified the defendant touched her in an inappropriate manner. On the

day in question, she had woken up early and gotten out of bed. She saw tj defendant as she was walking down the hallway and greeted him. As the defendant walked past her, he grabbed her butt, which she indicated felt intentional because he

squeezed it. After she laid down on the couch in living room, he followed her and touched her butt again. At that point, she returned to her bedroom because she felt

uncomfortable. J. B. did not believe her mother was home at the time and no one

else was in the room. J. B., who was nine years old when this occurred, did not tell

her mother or grandmother about the incident.

J.B. confirmed that, after her sister' s disclosure in late 2021, she felt less alone

and began telling people the defendant had done inappropriate things to her when they lived with him. J.B. stated: " I finally had an opportunity to get some kind of justice eventually." J.B. testified she did not know or see what was happening to her sister.

felt like people would have thought she was lying or that she was just a kid. She

stated, however, knowing that something happened to both her and her sister made her feel like she had somebody to fall back on. In 2021, when she came forward

with the disclosure, she was in a mental hospital because she was harming herself. J.B. denied that she and her siblings were about to be forced to leave Slidell and go live with their mother. J. B. stated she was honest with the forensic interviewer

concerning what happened when the defendant lived in her home. Her testimony was consistent with the statements she made during her CAC interview wherein she indicated the defendant touched her " ass once" and grabbed her butt in the hallway

one morning when she was nine years old.

J. B. explained that the text she sent to her grandmother stating she wanted to move to Tennessee to live with her mother was sent in February 2022, after the defendant had been arrested. J.B. was asked to clarify her text message: "[ 1] didn' t sic] really have anything happen to me other than him neglecting ud [ sic]." J. B.

explained that this was texted to her grandmother during a conversation about what happened to C.B. She clarified that she was telling her grandmother that, in comparison to • had happened to C. B., • really • bad happened to me."

On cross- examination, J.B. explained that she told her mother that she did not like

the defendant when he first moved in with them, which she believed was before he

J.B.' s testimony and her statements during the CAC interview were consistent. She stated that the defendant grabbed her butt with his hands and squeezed it twice. J. B. made independent, consistent, and detailed statements

regarding the defendant' s acts of sexual misconduct, which the jury found credible. Therefore, the record supports a finding that the State presented evidence at trial to establish each element of the offense of indecent behavior with juveniles and that

J. B. was under the age of thirteen at the time of the offense, and the defendant, who

was twenty-nine years old, was more than two years older than her. Accordingly, we find that a rational jury could find beyond a reasonable doubt that the defendant had the specific intent to commit a lewd and lascivious act upon the juvenile victim

and committed an act for the purpose of and tending directly toward the accomplishing of this act.

The defendant argues there are multiple internal contradictions between

C. B.' s statement to CAC and her trial testimony and that C. B. had motive to accuse the defendant as she was trying to avoid being sent to Tennessee to live with her mother. He also argued J. B.' s accusations are unbelievable because she did not

accuse the defendant until after C.B. had already done so and " later admitted in a flu#

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text exchange that [ the defendant] was only neglectful and not sexually abusive." He asserts that C.B. and J.B. 's testimony is simply insufficient to support the sexual battery conviction. The jury watched the CAC interview and, therefore, was aware of any alleged inconsistencies in C.B.' s trial testimony and still found the defendant guilty of sexual battery of a victim under the age of thirteen. The arguments raised by the defendant concern credibility issues. The jury heard all of the testimony and chose to believe C.B.' s and J.B.' s accounts of the incidents in question.

We are constitutionally precluded from acting as a " thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99- 3342 ( La. 10/ 17/ 00), 772 So. 2d 78, 83. The fact that the record contains evidence

that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Clouatre, 2012- 0407 (La.

App. I st Cir. 11/ 14/ 12), 110 So.3d 1094, 1100. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Petitto, 2012-

1670 ( La. App. Ist Cir. 4/ 26/ 13), 116 o. 3d 761, 769, writ denied, 2013- 1183 ( La. 11/ 22/ 13), 126 o. 3d 477.

After a thorough review of the record, we find the evidence supports the jury' s

verdicts.

Viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found beyond a reasonable doubt, and to the exclusion of

every reasonable hypothesis of innocence, that the defendant was guilty of sexual battery (victim under the age of thirteen years) of C.B., as well as indecent behavior with ajuvenile, J.B. This assignment of error is without merit.

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In his second assignment of error, the defendant argues the trial court erred in

granting the State' s motion in limine. Prior to trial, the State filed a motion in limine wherein it moved the trial court to prohibit the defendant from questioning the victims about whether they have voluntarily or involuntarily engaged in sexual activities with any person other than the defendant. Specifically, the State noted that police reports revealed C.B. disclosed in her CAC interview that a juvenile she

identified as H.L. committed sexual battery against her in the summer of 2421. The

defendant filed a response to the motion. At the hearing on the State' s motion, following argument by the parties, the trial court ordered that the portion of C.B.' s CAC interview referencing the accusation against H.L. be redacted. In response to defense counsel' s request for clarification, the trial judge subsequently stated, in pertinent part: " I think [La. Code Evid. art. 412] applies because ... the passage of

time ... and because there' s no information that would indicate that those statements were false." The judge also found that the prior accusation was irrelevant.

The defendant argues that the exclusion of any mention of C.B.' s accusation against H.L. violated of his fundamental right to confrontation. During the CAC interview, C.B. was questioned whether anyone else had sexually abused her. C. B. answered that a fourteen -year-old boy, H.L., also grabbed her crotch in an identical manner as the defendant, The State asserts the trial court properly excluded any mention of the other accusations against H.L. based upon the conclusion there is no

information that would indicate those statements were false.

v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L.Ed.2d 1019 ( 1967). The Sixth

Amendment to the United States Constitution and Article 1, § 16 of the Louisiana

Constitution guarantee an accused in a criminal prosecution the right to confront and cross- examine witnesses. See State v. Trosclair, 584 S4. 2d 270, 275 ( La. App. I!M

Cir.), writ denied, 585 So. 2d 575 ( La. 1991). The right to present a defense and to

confront witnesses includes the right of a defendant to attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the tnithfulness of his or her testimony. See La. Code Evid.

MOMMM However, the right of an accused sex offender to present a defense is balanced

against the victim' s interests under La. Code Evid. art. 412 ( the rape shield statute),

which is meant to protect the victim of sexual assault from having her sexual history

made public.

See State v. Curtin, 2022- 1110 (La. App. 1st Cir. 10/ 5/ 23), 376 So. 3d

seeks to introduce evidence that the victim made prior false allegations of molestation, the trial judge must evaluate the evidence presented to determine whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied. See State v. Smith, 98 -

Two requirements exist before evidence of prior sexual activity can be admitted for impeachment purposes, assuming this evidence is otherwise admissible. First, the activity must be of a sexual nature. Second, there must be evidence that the statement is false. State v. Richard, 2001- 1112 ( La. App. 1st Cir. 2/ 15/ 02), 812 So. 2d 737, 739, writ denied, 2002- 1264 ( La. 11/ 22/ 02), 829 So. 2d 103 8. Assuming

this initial burden is met, all other standards for the admissibility of evidence apply.'

L

denie , 2007- 2129 (La. 3/ 14/ 08), 977 So.2d 93 0. Thus, constitutional guarantees dl

5 The admissibility of such evidence is still subject to all other standards for admissibility under La. Code Evid. arts. 403, 404, 607, 608, and 613. State v. Bolden, 2021- 283 ( La. App. 5th Cir. 6/ 30/ 21), 325 So. 3d 602, 605.

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not assure the defendant the right to the admissibility of any type of evidence, but rather only that which is deemed trustworthy and has probative value. See State v.

are discretion calls for the trial court and should not be overturned absent a clear abuse of that discretion. State v. Guzman, 2022- 0502 ( La. App. Ist Cir. 11/ 17/ 22),

In Freeman, 970 Sold at 625, this court disagreed with the defendant' s

argument that the mere fact that the trial on the prior allegations resulted in an

acquittal indicated the victim' s allegations were false, noting the fact that another individual accused of raping the victim was acquitted does not establish that the accusation against that individual is false. It was further noted that at best, this

evidence proves only that the State failed to meet its burden of proving the offenses charged. See Freeman, 970 So.2d at 625- 26. This court found that the evidencM presented at the hearing was not sufficient evidence from which a jury could reasonably conclude that the victim made a prior false accusation of sexual behavior. Moreover, the trial court stated the evidence was otherwise inadmissible under La. Code Evid. art. 403, as it was speculative and only minimally relevant, and its probative value would be greatly outweighed by its prejudicial effect. See Freeman, 2111NOW4

Here, the defendant argues it is undisputed the State never charged H.L. with

any crime, which " highly suggests" that the accusation was deemed not credible.

Citing Smith, 743 p. 2d at 202, the defendant alleges as this was a prior false accusation that C.B. made against someone other than the defendant, he was entitled to use this false accusation for impeachment purposes. Smith is distinguishable

from the instant case in that the defendant herein has offered no evidence that the

victim ever retracted the prior allegation of sexual misconduct by H.L., and there was no independent witness to testify that the allegation was false. Based on the foregowe agree that the trial court properly excluded any mention of C.B. 1 accusation against H.L. This assignment of error is without merit.

2111, AL TA I LA M

In his third assignment of error, the defendant argues the trial court erred in

denying his motion for new trial based on a Brady 6 violation. Prior to sentencing, the defendant moved for a new trial on count one based upon several allegations,

including the contention the State intentionally withheld crucial Brady information that impeded the defendant' s ability to present a complete defense.' Specifically, the defendant alleged the State intentionally failed to provide additional text messages between J.B. and her maternal grandmother that directly related to J.B.' s testimony and contained Brady information. The defendant alleged his counsel only learned of the existence of additional texts during cross- examination of J.B. The

defendant argued the entire text conversations should have been provided to him

prior to trial under the State' s continuing discovery obligation.

The grounds for a new trial are contained at La. Code Crim. P. art. 851. The motion for a new trial is based on the supposition that injustice has been done the

defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. La. Code Crim. P. art.

851( A). The court, on motion of the defendant, shall grant a new trial whenever the

shows prejudicial error, see La. Code Crim. P. art. 851( 13)( 2), or if the court is of the

opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right, see La. Code Crim. P. art. 851( 13)( 5).

6 Brady v. Maryland, 373 U.S. 83, 83 S, Ct. 1194, 10 L.Ed.2d 215 ( 1963).

The defendant also moved for post -verdict judgment of acquittal on count two, alleging that because the evidence viewed in the light most favorable to the State is insufficient and does not reasonably permita finding of guilt under La. R.S. 14: 81( H)(2).

ILI

215 ( 1963), the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused after receiving a request for the evidence violates a defendant' s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the

prosecution. See also Stricklerv. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 194603 144 L.Ed.2d 286 ( 1999). The Brady rule encompasses evidence which impeaches

the testimony of a witness when the reliability or credibility of that witness may

determine guilt or innocence. See United States v. Bagley, 473 U.S. 667, 676, 105 i•

I I 11' 11 1

that not every violation of the broad duty of disclosure constitutes a Brady violation.

A prosecutor does not breach any constitutional duty to disclose favorable evidence unless the " omission is of sufficient significance to result in the denial of the defendant' s rialit to a fair trial." State v. Bright, 2002- 2793, 2003- 2796 ( La.

S. Ct. 2392124005 49 L.Ed.2d 342 ( 1976)). However, "[ flhe mere possibility that an

item of undisclosed information might have helped the defense, or might have

affected the outcome of the trial, does not establish ' materiality' in the constitutional sense." Agurs, 427 U.S. at 109- 110, 96 S. Ct. at 2400. Evidence is material only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed to the defense. A " reasonable

probability" has been interpreted as " a probability sufficient to undermine confidence in the outcome." State v. Strickland, 94- 0025 ( La. ll/ 1196), 683 So. 2d

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Thus, the reviewing court does not put the withheld evidence to an outcome -

determinative test in which it weighs the probabilities that the petitioner would have

obtained an acquittal at trial or might ®• so at a second trial. Bright, 875 So.2d a 42. Instead, a Brady violation occurs when the " evidentiary suppression

undermines confidence in the outcome of the trial."' Kyles v. Whitley, 514 U.S.

Here, the alleged Brady violation arises from a text message conversation between J.B. and her maternal grandmother. According to the defendant, an excerpt of the text message exchange was provided by the victims' mother to defense

counsel in February or March 2022, when the victims' mother was still romantically involved with the defendant. The excerpt in question read as follows:

J.B.: [ 1] wanna [ sic] move r1ly [ sic] badly but apparently its " illegal"

for me to go out of her custody during a trial that [ 1] don' t [sic]

wanna [ sic] have anything to do with

Nana: Did anything happen with you?

Nana: Ask the detective if it' s illegal

J.B.: [ 1] love you too goodnight and [1] didnt [sic] really have anything happen to me other than him neglecting ud [ sic]

On direct examination, J.B. clarified the context of the text message.' Defense counsel asked: " And when the State went over these with you, when... [ you] got

here last Friday or whenever, did they ask you to provide the rest of that conversation?" J.B. responded: " They didn' t ask. But I was able to pull up the

8 See discussion supra.

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conversation on my phone and give further context on it." J. B. admitted that she showed the State the full text conversation when they were preparing for trial.

At that time, the defendant did not object to the State' s failure to provide the additional text messages. Instead, at the hearing on the motion for new trial, the defendant identified as Brady material the fact that the maternal grandmother

touched C.B. At the hearing on the motion, following argument by the parties, the trial court indicated defense counsel' s best argument was concerning the text messages discovered during the course oftrial and, in pertinent part, ruled as follows:

But my understanding of Brady is that it' s got to be something that could have affected the outcome. I don' t believe it would have. I mean, the evidence in this case really relies on the believability and the credibility of the two victims who testified and whether or not the jury believed them or not.

I do find that all the allegations about Mr. Woodside to be a bit of a red herring, which I consider, even if it' s completely true, he wasn' t on trial here. That was a single separate incident unrelated to the allegations against [ the defendant].

And to try to project it all onto Mr. Woodside and not [ the defendant]

is maybe somehow the girls made a mistake. I' m just not convinced of it. I' m not convinced it could have made a difference.

And for those brief reasons ... I deny the motion for new trial and also the motion for post -verdict judgment of acquittal.

Here, J.B.' s testimony the • • the text messages made clear

that while she was inappropriately touched by the defendant, she felt the sexual WHO

Her testimony, along with the CAC video wherein she consistently stated the defendant grabbed her butt is sufficient to overcome any small impeachment value the defense could have obtained using the text messages. Thus, the absence of the

additional text messages did not undermine the outcome of the trial. Accordingly,

we do not find there was a reasonable probability that the result of the trial would have been any different had the defendant had a copy of the text messages in question prior to trial instead of (luring the course of trial. As such, we do not find any discovery violation by the State. In light of the relevant jurisprudence, and based

upon our review of the entire record, the trial court did not abuse its discretion in

denying the motion for new trial. See State v. Ruffin, 2016- 0264 ( La. App. 1st Cir. 9/ 20/ 16), 277 So. 3d 319, 325, writ denied, 2016- 1913 ( La. 9/ 15/ 17), 225 o. 3d 483.

This assignment of error is without merit.

In his fourth and final assignment of error, the defendant argues the trial court

erroneously permitted the testimony of Dr. Paige Culotta. The trial court accepted Dr. Culotta as an expert in pediatrics and child abuse pediatrics, ruled that she may testify in the form of an opinion thereto, and overruled the defense' s general

objection.

The defendant asserts Dr. Culotta did not merely testify about general

reasons for delayed disclosures or lack of injuries in child sexual abuse cases. He

contends her testimony exceeded the permissive scope when she opined that both C.B.' s and J. B.' s disclosures were consistent with sexual abuse. The State argues

this assignment of error is not properly before this court because the defendant failed

to lodge a specific objection on the grounds that Dr. Culotta' s testimony exceedem the scope of her expertise. The State further argues even if this assignment of error

were preserved for review, it lacks merit. Specifically, the defendant points to the following questioning of Dr. Culotta on direct by the State.

Q. If a child is hospitalized for an unrelated reason ... and if they were asked about child sexual abuse or physical abuse, would

you be surprised they wouldn' t disclose or deny any kind of prior sexual abuse in that environment?

A. I wouldn' t be surprised about that, no.

Even if they had been abused in the past?

A. Correct.

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Culotta, there was no specific objection to the foregoing testimony. A review of the record does not reveal that the trial court gave defense counsel a continuing objection to this line of questioning. It is well settled that defense counsel must state the basis for an objection when it is made, pointing out the specific error to the trial court. The grounds for objection must be sufficiently brought to the court' s attention to allow it the opportunity to make the proper ruling and prevent or cure any error. See La. Code Evid. art. 103( A)( 1); State v. Williams, 20104392 ( La. App. Ist Cir.

2/ 11/ 11), 2011 VVI, 2178767, * 5 ( unpublished), writ denied, 2011- 1028 ( La. 3/ 9/ 12),

ofthe complained -of comments or questions on the basis they were outside the scope of Dr. Culotta' s expertise, the defendant is procedurally barred from having this claim reviewed. See La. Code Crim. P. art. 841; State v. Duhon, 2018- 0593 ( La.

App. 1st Cir. 12/ 28/ 18), 270 So. 3d 597,, 631, writ denied, 2019- 0124 ( La. 5/ 28/ 19), 273 o. 3d 315.

Pursuant to La. Code Crim. P. art. 920( 2), this court routinely conducts a

review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023- 0117 La. App. 1st Cir. 11/ 3/ 23), 378 So3d 766, 775, writ denied, 2024- 00027 ( La.

5/ 21/ 24), 385 So3d 242. After a careful review of the record, we have found one

error. The record reflects the trial court advised the defendant: " Any applications

for post[-] conviction relief pursuant to Art. 930. 8 of the criminal code must be filed

within three years of your sentence becoming final."

A defendant generally has two years after the judgment of conviction and sentence have become final to seek post -conviction relief. See La. Code Crim. P. art. 930. 8( A). Thus, the trial court provided incorrect advice regardina tI9

M

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prescriptive period for seeking post -conviction relief. However, the trial court' s failure to properly advise the defendant has no bearing on the sentence and is not grounds to reverse the sentence or remand for resentencing. See State v. LeBoeuf,

2621 ( La. 8/ 15/ 07), 961 So.2d 1158. Accordingly, this error is not reversible, and

Rather, we advise the defendant that La. Code Crim. P. art. 930. 8( A) generally provides that no application for post -conviction relief, including applications which

seek an out -of t-ime appeal, shall be considered if it is filed more than two years aftl the judgment of conviction and sentence have become final under the provisions of

La. Code Crim. P. art. 914 or 922. LeBoeuf, 943 So.2d at 1141,

Based on the foregoing, the convictions and sentences of the defendant, William Eugene Naulty, are affirmed.