STATE OF LOUISIANA NO. 23-KA-375
VERSUS FIFTH CIRCUIT
EDGAR M. HIDALGO COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 20-5193, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
May 08, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Timothy S. Marcel
AFFIRMED; REMANDED WITH INSTRUCTIONS MEJ JGG TSM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Andrea F. Long Eric Cusimano
COUNSEL FOR DEFENDANT/APPELLANT, EDGAR M. HIDALGO Edgar M. Hidalgo Jane L. Beebe JOHNSON, J.
Defendant/Appellant, Edgar M. Hidalgo, appeals his first degree rape of a
juvenile under the age of 13 conviction and life sentence rendered in the 24th
Judicial Court, Division “E”. For the following reasons, we affirm Defendant’s
conviction and sentence, and we remand the matter with instructions.
FACTS AND PROCEDURAL HISTORY
On January 14, 2021, a Jefferson Parish Grand Jury returned an indictment,
charging Defendant with the “Aggravated Rape (now known as First Degree Rape)
upon a known juvenile (05/06/2005) wherein the child was under the age of
thirteen,” in violation of La. R.S. 14:42(A)(4).1 Defendant was arraigned on
January 15, 2021 and pleaded not guilty. The case proceeded to trial on February
27, 2023.
At trial, Margaret Haydel, a social worker at John Ehret High School,
testified that she met A.M.2 in September 2019 during his freshman year. She
explained that the meeting was a routine, basic screening conducted with the
students. The screening included a risk assessment, GAD,3 and a depression and
anxiety screening. Ms. Haydel testified that she was a mandatory reporter, which
she defined as “anyone that is responsible and liable to report any concerns of
abuse or neglect.”
Ms. Haydel testified that the questionnaire for the screening was completed
by the students. She would then look over the form and go over it with them,
while taking her own notes on the form. To the question “Have you ever been
physically, sexually or emotionally abused?” A.M. wrote, “Yes.” Ms. Haydel
1 The indictment states that Defendant committed the offense “on or between December 1, 2011 and June 1, 2012.” 2 In the interest of protecting minor crime victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court’s published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim’s identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. E.J.M., III, 12-774, 12-732 (La. App. 5 Cir. 5/23/13), 119 So.3d 648, 652 n.1. Compare State v. R.W.B., 12-453 (La. 12/4/12), 105 So.3d 54. See also, Uniform Rules of Court - Courts of Appeal, Rule 5-2. 3 “GAD” is an acronym for “Generalized Anxiety Disorder.”
23-KA-375 1 testified that she felt that A.M. was coping well and had family support. She did
not make a report of physical, sexual, or emotional abuse at that time. She
explained that when she asked A.M. about his answer to the question, he explained
that he had “dealt with something” when he was very young but had moved on
from it and did not want to go into any details. Ms. Haydel asked him if he was
around the person or persons who caused him any kind of abuse, and he said, “no.”
A.M. also reported being safe. He reported having spoken to his sister and friends
about the abuse, but he had not told his mother. He expressed that he was trying to
move on. Ms. Haydel told A.M. that he could speak to her anytime he wanted to.
Ms. Haydel testified that had she had some information regarding a threat to his
safety at that time, she would have made a different decision in choosing to pursue
the conversation with him. Ms. Haydel testified that, in reference to A.M.’s
depression screening in 2019, there was nothing of note in terms of A.M.’s
depression at that time. She observed that A.M. was a “normal teenager” at that
time.
A.M.’s next assessment was dated September 17, 2020, when he was in the
tenth grade. Ms. Haydel testified that follow-up screenings were done with
students every year. She explained that, because of COVID-19, students were
slowly reintegrated back into the school and were alternating between attending
school in person for three days and virtual school for two days. A.M.’s assessment
was conducted in person. Ms. Haydel testified that she spoke with A.M. about
COVID-19 and coping. A.M. expressed that he had had “[a] rough couple of
months.” He explained that he was upset because his mom was friends with an ex-
boyfriend, Defendant, on social media. A.M. informed her that Defendant was the
person whom he referenced the year before, the person who had abused him.4
4 Ms. Haydel testified that A.M. referred to the person who abused him as his mom’s ex-boyfriend “Edgar,” but she was given no other information. She also explained that in her prior assessment, although she was aware of some type of abuse, A.M. never provided her with a name of the perpetrator.
23-KA-375 2 A.M. was upset because his mother thought that the ex-boyfriend was a good
person, and she did not know the things he had done to A.M. A.M. had not told his
mother about what happened, and that was causing A.M. stress and anxiety. A.M.
informed Ms. Haydel that he had cut himself on his bicep. He also stated that he
avoided mirrors because he was not comfortable in his own body.
Ms. Haydel testified that there had been a substantial change in A.M. from
her last interview with him the prior year. Ms. Haydel noted a score of six out of
ten for A.M.’s depression. She testified that A.M. informed her that he had
planned to jump off the roof or overdose. Ms. Haydel completed a suicide referral
form for A.M. due to his suicidal ideations. In the form, A.M. reported that he had
had “[a] rough couple of months” and expressed, “Some days I don’t want to be
here anymore. I feel disgusted with myself.” He also stated that he was not happy
in his own body. In her report, Ms. Haydel noted that A.M. stated he drew
pictures, and some of those pictures depicted suicidal ideation. Ms. Haydel
indicated on her forms that A.M. had depression and PTSD. A.M. stated during
their session that over the months of COVID-19, he was reliving and thinking
about the trauma he went through, and it was becoming harder to cope with. A.M.
told Ms. Haydel that he was sexually abused at age seven or eight by his mother’s
ex-boyfriend and that he was penetrated by him on several occasions. Ms. Haydel
testified that she tried to contact A.M.’s mother, but she did not answer, so a text
message was sent to his sister. In her report, Ms. Haydel made a recommendation
for A.M. to be taken to the emergency room. She testified that A.M.’s mother met
with her and took her son to the hospital. Ms. Haydel met with A.M. again on
September 22, 2020 at a follow up meeting. A.M. indicated on the form that he
had spoken to his mother and the police to give a report about the abuse. A.M.
also indicated that he was in therapy.
Chelsea Moore, clinical social worker at Children’s Hospital New Orleans,
23-KA-375 3 testified that she recalled meeting with A.M. She testified as to the following in
regards to A.M.’s medical records. A.M. was seen by Dr. Ayush Gupta for a
psychiatric evaluation because he had expressed suicidal ideations to his school
counselor on the same day. Ms. Moore testified that at the time she met with
A.M., the incident of prior sexual abuse had not been reported to the authorities;
she contacted his school’s counselor to verify whether the abuse had been reported.
The school had not reported it, so she called 9-1-1 to make the report.
Before she called the police, Ms. Moore met with A.M., and she told him
that she was a mandated reporter. He explained that he had not told his mother
about the abuse. Ms. Moore explained that she was going to have to call the
police, and his mother might wonder what was going on. They developed a plan to
tell his mother, and she stayed in the room while A.M. told his mother about the
abuse. Ms. Moore stated that this was an impactful moment for her. Although
A.M. disclosed the information to his mother in Spanish, which Ms. Moore did not
speak, she observed their body language. Ms. Moore testified that it appeared
consistent with A.M.’s account that he had not previously disclosed this
information to his mother. In her report, Ms. Moore documented that A.M.
disclosed previous sexual abuse and suicidal ideations to his school counselor. She
further documented that A.M. told her he had “intrusive thoughts of being
penetrated penis to anus on multiple occasion [sic] by former boyfriend of mom’s.”
Ms. Moore testified that a doctor made a referral for A.M. to the “Care Center”,
where a forensic interview would be conducted.
Jefferson Parish Sheriff’s Office Detective Kristen Hollis testified that she
became involved in the instant matter when she received a call to a scene where a
juvenile alleged sexual abuse. She testified that it was a delayed report of sexual
abuse, which meant it did not occur immediately right before the call. Before
speaking with A.M., Detective Hollis scheduled an interview for him at the
23-KA-375 4 “advocacy center.”5 After reviewing the advocacy center interview, she was able
to determine a suspect, Defendant. A.M. gave her the name of Defendant, and she
located a photo of him on social media. A.M. confirmed that the individual in the
photo was the person who violated him. Detective Hollis testified that she
identified Defendant’s vehicle, and a “hit” was placed on it. Deputies located the
vehicle, and Defendant was arrested. Detective Hollis testified that Defendant
made a statement with regard to the allegations against him. She did not take the
statement herself because Defendant only spoke Spanish. Her supervisor at the
time, Sergeant David Canas, spoke Spanish, and he took the statement from
Defendant, while Detective Hollis monitored from a different room. After
listening and reviewing Defendant’s statement and speaking to Sergeant Canas, an
arrest warrant was issued for Defendant.
S.G. testified that she was A.M.’s mother. A.M. was the youngest of six
children. A.M. lived with S.G., his siblings, and her partner, C.F., at that time.
She testified that A.M. considered C.F. to be his stepdad and generally had a good
relationship with him, although there was one occasion where they had a verbal
altercation. S.G. testified that she met Defendant towards the end of 2010 or the
beginning of 2011. They broke up in February 2012 because Defendant was
always working or outside the state. S.G. testified that Defendant would
sometimes spend the night at her residence on the weekends, and he would spend
time with her children when she was not home.
S.G. testified that A.M. never told her about what Defendant did to him. She
stated that she became aware of the abuse in September 2020. She was called to
come to his school and told to take him to the emergency room at Children’s
5 Aubrey Ziegler, forensic interviewer with the Jefferson Children’s Advocacy Center, testified that she conducted an interview of A.M. at the Child Advocacy Center (“CAC”). The interview was recorded. A.M.’s relatives were not in the room while the interview took place, which is mandated by law. The interview was monitored by a detective. The CAC interview was published to the jury.
23-KA-375 5 Hospital. A social worker met with her to inform her of what had happened. She
and A.M. met with a police officer. A.M. told her that Defendant had abused him.
She testified that A.M. has been in counseling, and it has helped him a lot.
M.V. testified that A.M. was her brother, and she was “about four years”
older than him.6 M.V. testified that C.F. was her stepfather, and she and A.M. had
a good relationship with him. She testified that she also had a good relationship
with A.M. She explained that, at the time that A.M. disclosed the sexual abuse to
her, he would get angry over small things. M.V. testified that she first learned
about what had happened to A.M. in approximately 2015. She told A.M. not to tell
anyone about it because she was scared for her mom and her family. M.V. learned
that A.M. may have told a friend about the sexual abuse, but she never told anyone
about it. M.V. testified that after the sexual abuse was disclosed to the school
counselor, A.M. started to go to counseling, and his anger subsided.
M.V. testified that she recalled Defendant spending nights at their house.
She testified she never saw the incidents of sexual abuse occur. However, she
testified that she realized she had been at home during one of the incidents of
sexual abuse that A.M. told her about. M.V. recalled that, on one of the last days
that Defendant came to their home to pick up his items, she was downstairs and
A.M. was in their mother’s bedroom upstairs. Defendant went upstairs to pack his
bag. She recalled it being very quiet. Defendant came back downstairs, collected
more items, then went to his car.
A.M. testified that his date of birth was May 6, 2005. A.M. stated he was
approximately six or seven years old around the time of the abuse. There were two
bedrooms in the apartment where his family lived. He shared one with his
siblings, and his mother had her own bedroom. A.M.’s father passed away in
Honduras when A.M. was approximately nine years old. A.M. testified that his
6 At the time of trial, M.V. was 21 years old.
23-KA-375 6 mother dated Defendant for a few months during the time they lived in that
apartment.7 Defendant never fully moved into the apartment, but he spent nights
there. He recalled Defendant being “cool” and said that he would be nice to him
and let him play on his phone. A.M. testified that his mother worked a lot, and
when she worked, she would leave him alone with Defendant.
A.M. testified about the first incident of sexual abuse from Defendant. A.M.
was usually the first to wake up early, and on that day, he did not have to attend
school. His siblings were sleeping. He felt bored and went to his mother’s room.
The time was approximately 8:00 a.m. or 9:00 a.m. His mother was not home, but
Defendant was in bed and A.M. asked him if he could play games on his phone.
Defendant let him play with the phone, and A.M. got into the bed with him. A.M.
was wearing a t-shirt and basketball shorts. Defendant was wearing boxers. A.M.
was lying on his side playing “Talking Tom” and “Jetpack Joyride” on
Defendant’s phone. Defendant threw a blue blanket over A.M. Defendant was
spooning A.M. and holding his lower waist. Defendant pulled A.M.’s shorts down
to his mid-thigh area and began to penetrate him. A.M. testified that Defendant
penetrated him with his penis in an “in and out” motion. A.M. testified that it felt
like he was defecating himself. He testified that Defendant’s penis was hard, and
Defendant was breathing heavily. A.M. still had the phone in his hands. After a
few minutes, Defendant laid A.M. on his back, and he proceeded to perform oral
sex on his penis. Defendant’s hands were holding A.M.’s waist. Defendant’s
phone was now by A.M.’s side. Defendant asked him which one he liked more,
and A.M. told him he liked the oral better. Defendant then repositioned A.M. back
to the previous position they were in, spooned him again, and penetrated him again
with his penis. A.M. recalled focusing on the floor, the wall, and the doorway. He
testified that when Defendant penetrated him, he felt “icky” and dirty. A.M. again
7 A.M. identified Defendant in open court.
23-KA-375 7 thought he had used the bathroom on himself. He testified that it did not hurt, but
it burned. After approximately five minutes, A.M. got up, put his clothes on, and
went to the bathroom to clean himself. When he wiped himself, he saw a
yellowish/greenish residue. At the time he thought it was urine or “weird looking”
feces. He was confused about what it was. He did not tell anyone about the
incident. He testified that he did not know what was happening and did not know
it was wrong. A.M. testified that he did not dislike Defendant after this incident.
A few days to a week later another incident of sexual abuse occurred. A.M.
testified that his sister was downstairs, and his brother was still asleep. A.M.’s
mom was at work. He knew Defendant would let him play on his phone, so he
went to his mom’s bedroom to ask him. He got into bed with Defendant, and
Defendant again threw the blanket over him. A.M. testified that this time the abuse
was more quickly paced. Defendant pulled A.M.’s shorts down and penetrated
him. It lasted approximately five to ten minutes, before A.M.’s sister went upstairs
and Defendant stopped. After the incident, A.M. cleaned himself again because he
felt dirty. He did not tell anyone about the incident because he did not know what
was happening. A.M. testified that he and his mother never spoke about “good
touch,” “bad touch,” or “private parts.” A.M. still thought of Defendant as a
“decent guy” and did not know it was wrong.
A.M. testified to a third incident of sexual abuse after his mother and
Defendant broke up. A few weeks to possibly a month after the last incident,
Defendant went to their house to pick up items he had in a storage closet upstairs.
His mother was at work, and only A.M. and his sister were home. While
Defendant was upstairs, A.M. went upstairs. A.M. could not recall if Defendant
called him up. Defendant was kneeling on one leg, getting tools from the closet.
Defendant grabbed A.M. by his hips and turned him around. He pulled A.M.’s
shorts down to his knees and performed oral sex on his anus. A.M. testified that he
23-KA-375 8 felt Defendant’s tongue in his anus going side to side, up and down, and in a
penetrating motion. A.M. recalled focusing on the stairs and the wall. He recalled
that the stairs were gray and the walls were white. A.M. recalled that Defendant
was wearing blue jeans and an orange polo shirt. The incident lasted
approximately five to six minutes. Defendant stopped and neither of them said
anything to each other. A.M. did not tell anyone about this incident and testified
he did not think it was worth telling or that he had to tell someone.
A.M. testified that, when he was approximately 11 years old and in sixth
grade, he saw Defendant at a birthday party. He felt anxious and “kind of scared”
when he saw Defendant. A.M. testified that at that time he was in a sex education
class and was learning about protection, STDs, rape, and what was legal and
illegal. While he was taking the class, he thought about what Defendant had done
to him, and he felt “extreme discomfort.” He testified, “I was like, shocked,
because, you know, I couldn’t believe that, Oh, wait, I’m one of those people that
experienced that kind of – I guess it’s abuse.” He said soon after, he told his sister
about what happened to him. A.M. testified that they were very close, and he
knew he could tell her. He did not give her details when he told her and testified
he did not feel like “getting too much into that.” He said that they had a mutual
agreement not to tell anyone. A.M. testified that he did not want anyone else to
know at that point because he was embarrassed, ashamed, and it felt like it was his
fault. He testified that he felt like he could have not played the games on
Defendant’s phone, or gotten in the bed, or could have told someone what occurred
earlier. He felt he could have stopped it or gotten out of the bed. A.M. testified
that because he was a boy, he felt like talking about it would lead to him being
made fun of, or that people would call him gay, or say “that [didn’t] happen to
boys.” He felt like even if he came out about it, he would be a “walking joke.”
A.M. saw Defendant again when he was approximately 12 or 13 years old.
23-KA-375 9 He accompanied his mom to make a car payment to a friend. A.M. was in the car,
and his mom brought Defendant over. She had A.M. say “hi” and shake his hand.
A.M. spoke to Defendant and then stayed quiet. S.G. and A.M. left soon after.
A.M. felt angry that he saw Defendant again and felt anger towards his mom. He
knew she did not know anything, but he still felt angry.
A.M. testified that he was in his freshman year when COVID-19 started. He
was taking online classes at home but failing all of them. A.M. was home alone all
day, while his mother and sister were at work. He said he did not have anything to
do and spent a lot of time thinking about the sexual abuse. He explained that he
was not confident in himself, and he hated himself. He expressed that he could not
look in the mirror and be proud of what he saw. A.M. testified that he would
change his hair, get piercings, and change his appearance, but nothing would
change how he felt. He testified that his body did not feel like his own, and he felt
like his body was a used rag. He felt anger toward Defendant and toward himself.
A.M. explained that he felt lonely and depressed and thought about suicide on a
daily basis. He was cutting himself on his upper left arm, his legs, and his torso. 8
A.M. testified that he cut himself because it was quick and relieving. He felt like
he was taking control of his own body “with a different kind of pain sensation.”
A.M. stated that he would joke about what had happened to him with his friends as
a way of coping. He testified that some of his friends knew what had happened to
him. His friends would not laugh when he joked about it, and they would act
uncomfortable.
A.M. testified that he saw a social worker at school, and he disclosed the
information to her. He originally saw the social worker as a freshman. He testified
that the second time he saw her, there was a lot of discussion about mental health,
and he told her about the abuse and how it had been affecting him. He did not
8 A.M. testified that he had scars on his arm from the cutting. He showed the scars on his arm to the jury.
23-KA-375 10 think anything would really come from him disclosing the sexual abuse to her.
When he did, however, she called his mother and called Children’s Hospital. A.M.
felt very anxious and scared. He said he was not prepared to tell his mom. His
mother brought him to the hospital. At that point, she did not know what was
going on, other than that the school told her that they thought he had severe
depression and suicidal thoughts. While at the hospital, he told his mother what
happened after he was seen and felt a sense of relief, but he was still scared. A.M.
testified that he was worried he or his mother would be in trouble. A.M. began to
see a therapist once a week.9 He testified that his therapist helped him to not blame
himself. A.M. testified that he still thought about the abuse but not as much, and it
did not affect him as much as it once did.10
Anne Troy, a nurse practitioner at Children’s Hospital’s Audrey Hepburn
Care Center, testified that she was a nurse practitioner in forensics.11 She testified
that she did not evaluate A.M. nor had she ever met him. She testified generally as
to her experience and expert opinion on particular topics of child abuse. Nurse
Troy testified that she had experience evaluating both female and male victims.
She explained that there is more shame and embarrassment that accompanies a
male victimization and testified that the very nature of the sexual abuse makes
males reluctant to disclose the abuse. She testified that factors that could affect the
number of times a child is abused are opportunity and access. Nurse Troy
explained reasons why child sexual abuse victims do not disclose the abuse right
away: naivety, shame, embarrassment, and awareness of their family’s situation.
9 A.M. testified that he brought his therapist with him to court. He testified that he had been seeing this therapist for two and a half years. He stated that he had a session with his therapist before testifying in court in order to mentally prepare because he had not talked about the incidents in a while. 10 When asked by the State why he was at court, A.M. replied: To receive justice, to kind of finally fully move this past me and kind of, in a way, shed light on the fact – you know, at first, coming out about this, I was very anxious. I felt like ashamed, I felt embarrassed, but over time I’ve learned. I guess I am doing something different, I’m kind of making a little change. Not many male victims come out about the abuse they experience as a kid or even as adults, so I guess this kind of puts more light on that subject. 11 Nurse Troy was accepted as an expert in child abuse and child abuse pediatrics.
23-KA-375 11 Nurse Troy testified that, from her experience, most children do not want to talk
about the sexual abuse they have experienced. She explained that where victim’s
incidents of abuse are similar to one another, such as the actions of the perpetrator,
it could affect how the victim remembers those incidents.
Nurse Troy testified that when a child is able to remember sensory details, it
assists the examiner in confirming what happened to them. She confirmed that
when a child is able to give sensory details, it is noteworthy because it shows
something that they have experienced. She further explained that it takes away the
“differential of being coached.” Nurse Troy confirmed that a child being able to
remember a video game that he was playing would be an important sensory detail.
She explained that “grounding themselves in the day” would give an examiner a
picture of what was going on in the child’s experience of abuse. She further
confirmed that a child remembering things like a color of a blanket, what he or she
was wearing, and remembering that after being anally penetrated he or she felt like
they defecated would all be important sensory details.
Nurse Troy testified that one cannot tell the veracity of their recollection of
the abuse by a victim’s response. She explained that, in a case of delayed
reporting, she does not expect to find physical signs of trauma or expect to find
DNA. Nurse Troy explained that she very often saw incidents of sexual abuse
where a perpetrator abused the child while other people were in the home. She
stated that, in cases involving child sexual abuse, she had seen cases where the
child did not scream out in pain or cry. She explained that children are silent and
shocked. She testified the feeling of pleasure can be confusing for children, and in
turn, keep them quiet about abuse. Nurse Troy testified that she had met with
children who have experienced abuse but still like the parent, explaining it was
“persistence of attachment” due to the child’s reliance on the adults in their life to
care for them. She testified that victims often blame themselves for the abuse, and
23-KA-375 12 male victims have a more complicated time in disclosing sexual abuse when they
were abused by another male.
On February 28, 2023, at the conclusion of the presentation of evidence, a
12-person jury returned a unanimous verdict of guilty as charged. On March 6,
2023, Defendant was sentenced to life imprisonment at hard labor without the
benefit of parole, probation, or suspension of sentence. Immediately after
sentencing, defense counsel stated, “And Judge, just for the record, notice our
intent to file an appeal, Judge, and I will – I will send in a written motion to that
effect, also.” On April 12, 2023, the defense filed a motion for appeal, which was
granted by the trial court on April 17, 2023.12 The instant appeal followed.
ASSIGNMENTS OF ERROR
In his counseled assignment of error, Defendant alleges that the evidence
was insufficient to support the jury’s guilty verdict. In his pro se assignments of
error, Defendant alleges that the evidence was insufficient to support the verdict,
the trial court erroneously allowed the testimony of Anne Troy, and newly
discovered evidence requires reversal of his conviction.
LAW AND ANALYSIS
Sufficiency of Evidence13
Defendant argues that the State failed to meet its burden of proof at trial
enunciated by the Supreme Court in Jackson v. Virginia.14 Defendant avers that
the question left unresolved in the case was if the crime was actually committed.
Defendant argues that, because sex crime cases are often solely based on the
victim’s testimony, it is imperative that police, prosecutors, and all involved
corroborate and elicit any pertinent facts so that justice is served and the law
12 Although Defendant’s written motion for appeal was not filed until April 17, 2023, we find that his statement immediately after sentencing is interpreted as a timely motion for appeal pursuant to La. C.Cr.P. art. 914(A). See State v. Murphy, 07-2032 (La. 2/22/08), 974 So.2d 1290 (per curiam). 13 We will address the counseled and pro se sufficiency of the evidence assignments of error jointly. 14 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
23-KA-375 13 upheld. Defendant avers that this is especially true in the instant matter when A.M.
did not report the abuse until nearly 10 years later. Defendant points to an
inconsistency revealed through trial between A.M.’s actual age and the age he told
others that the abuse occurred. Defendant also argues that neither A.M.’s sister nor
mother saw, heard, or suspected any sexual abuse, and they were in the house
during some or all of the three alleged incidents. Defendant alleges there was
nothing the defense could do to rebut the claims of A.M., and the State failed to
prove every element of the instant case beyond a reasonable doubt; thus, the
evidence was insufficient to support the jury’s verdict.
The State responds that, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime of aggravated rape of a known juvenile under the
age of 13, beyond a reasonable doubt. The State avers that despite Defendant’s
arguments that the evidence was insufficient, the law states that “[i]n sex offense
cases, the testimony of the victim alone can be sufficient to establish the elements
of a sexual offense, even when the State does not introduce medical, scientific, or
physical evidence to prove the commission of offense.” The State contends that
the jury was aware that A.M. waited years to disclose the sexual abuse, and the
jury heard testimony from an expert who discussed delayed disclosure in child
sexual abuse cases. The State argues the jury found the testimony credible. As to
the inconsistencies with regard to A.M.’s age at the time of the abuse, the State
avers that the jury could have reasonably concluded that this was attributable to
A.M.’s young age at the time of the abuse. The State argues that regardless of
whether A.M. was six, seven, or eight when he was abused, he would have been
under the age of 13, meeting the age requisite of La. R.S. 14:42(A)(4). The State
23-KA-375 14 argues that the date of the offense is not an essential element of the crime of
aggravated rape.15
Defendant does not contest on appeal that the State failed to prove any
specified essential statutory elements of La. R.S. 14:42(A)(4). Rather, Defendant
argues that the State did not prove that the crime was actually committed, while
pointing to inconsistencies in the victim’s age at the time of the offense and a lack
of corroboration.
In sex offense cases, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even when the State does not introduce
medical, scientific, or physical evidence to prove the commission of the offense.
State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 703; State v.
Raye, 17-136 (La. App. 5 Cir. 10/25/17), 230 So.3d 659, writ denied, 17-1966 (La.
6/15/18), 257 So.3d 674. While Defendant questions the credibility of the A.M.,
the jury was instructed as to credibility and determination of the weight of a
witness’ testimony. The jury heard A.M.’s testimony, who described in great
detail to the jury three separate incidents of sexual abuse. A.M. also recounted the
abuse to his sister, his school counselor, the police, and the forensic interviewer.
Despite Defendant’s argument regarding inconsistencies as to A.M.’s age when the
abuse happened, the jury made a credibility determination after considering all of
the testimony presented. This Court should not second guess credibility
determinations. See State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307
So.3d 1189, 1197, writ denied, 21-274 (La. 4/27/21), 314 So.3d 838, cert. denied, -
-- U.S. ---, 142 S.Ct. 296, 211 L.Ed.2d 138 (2021).
Defendant questions A.M.’s credibility, specifically as to his age at the time
of the incidents. A.M. reported that he was approximately seven or eight years old
when the sexual abuse occurred. A.M.’s date of birth was confirmed to be May 6,
15 The State cites to State v. Lawrence, 21-733 (La. App. 5 Cir. 11/2/22), 362 So.3d 807, 822.
23-KA-375 15 2005. Testimony from A.M.’s mother revealed that A.M. lived in an apartment
from December 2011 to December 2012.16 A.M.’s mother also testified that she
dated Defendant while she lived in the apartment, and A.M. was at least six years
old at the time of the abuse.
In State v. Gaddis, 07-395 (La. App. 5 Cir. 11/13/07), 973 So.2d 21, 28, writ
denied sub nom. State ex rel. Gaddis v. State, 08-156 (La. 10/10/08), 993 So.2d
1277, this Court stated that although there were some inconsistencies between the
victim’s statements during his CAC interview and his testimony at trial, the jury’s
decision to believe the victim’s account of events over the defendant’s testimony
was rational. This Court cited to its previous decision in State v. Simmons, 03-20
(La. App. 5 Cir. 4/29/03), 845 So.2d 1249, 1258, where it stated the discrepancies
in the child victim’s statement were not necessarily indicative of untruthfulness or
incompetence. This Court in Simmons stated that the memory lapse and alleged
inconsistences may have resulted from “the child’s tender age—5—years—old on
the date of the incident.” Id.
After review, we find that the jury found A.M.’s testimony credible, despite
the purported inconsistency of his age at the time of the abuse. We conclude that
any discrepancy in A.M.’s recollection of his age at the time of the sexual abuse
could be attributed to the delayed disclosure in reporting the abuse. We also find
that whether A.M. was six, seven, or eight years old at the time of the sexual abuse,
inconsistencies in A.M.’s recollection of his age at the time of the abuse could
have resulted from his young age.17 As the State pointed out in its brief, La. R.S.
16 S.G’s lease for 1157 Orange Blossom Lane confirms the lease date range from December 2011 to December 2012. 17 Nurse Troy testified that where victim’s incidents of abuse are similar to one another, such as the actions of the perpetrator, it could affect how the victim remembers those incidents. The circumstances surrounding the first and second incidents of the sexual abuse of A.M. were very similar. This Court has held that even when some slight inconsistencies in a victim’s testimony, interviews, and statements are present, a jury’s decision to believe the victim over the defendant is rational when the victim consistently described the details of the incident throughout her statements, interviews, and testimony. State v. Miller, 11-498 (La. App. 5 Cir. 12/13/11), 84 So.3d 611, 619, writ denied sub nom. State ex rel. Miller v. State, 12- 176 (La. 9/14/12), 97 So.3d 1012. In the instant matter, details of the sexual abuse from A.M.’s testimony are consistent with the CAC interview and A.M.’s account of the events to the counselor at his school.
23-KA-375 16 14:42(A)(4) only requires that the victim be under the age of 13. We find that,
despite Defendant’s argument that the inconsistency in A.M.’s age should bear on
the sufficiency of the evidence, the jury made a credibility determination when it
found Defendant guilty of aggravated rape.
Defendant alleges that the third incident that A.M. described involved
Defendant licking his anus and because there was no penile or digital penetration,
this incident did not meet the elements for first degree rape. We find that this is an
inaccurate statement of the law. As discussed, La. R.S. 14:42(A) provides that
aggravated rape is a rape committed upon a person 65 years of age or older, or
where the anal, oral, or vaginal sexual intercourse is deemed to be without the
lawful consent of the victim because it is committed under one of the listed
subsections. La. R.S. 14:41(A)(C) provides that “oral sexual intercourse” includes
the intentional engaging in “[t]he touching of the anus or genitals of the victim by
the offender using the mouth or tongue of the offender.” A.M. testified in detail
that he felt Defendant’s tongue in his anus moving in a penetrating motion. As
such, we find that the facts of this third incident meet the requisites of La. R.S.
14:41(A)(C), and Defendant’s argument in this regard is without merit.
In further support of his argument, Defendant points out that A.M.’s mother
and sister did not see, hear, or suspect any sexual abuse, although they were in the
house for some or all of the three incidents. Defendant’s contention is inaccurate.
While A.M. testified that his sister was home during all three incidents, he also
testified that his mother was at work when all three incidents occurred. This was
corroborated by A.M.’s mother’s own testimony, when she stated Defendant would
sometimes spend nights at her house on the weekends, and he would spend time
with her children when she was not home. Nurse Troy explained that it was not
uncommon for sexual abuse to occur while other people were in the home, and that
she had seen cases where the child did not scream out in pain or cry because the
23-KA-375 17 child was in shock. Defendant also points to the “impossible” hurdle to defend a
sex offense case with lack of physical evidence or witnesses. However, as earlier
discussed, the testimony of the victim alone can be sufficient to establish the
elements of a sexual offense, and in the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. See Clifton,
supra. We find that the jury weighed the evidence and made a credibility
determination in relying on the victim’s testimony.
Defendant also mentions several times in his brief that the abuse was not
reported until nearly 10 years later and that corroboration is needed in such a case.
As discussed, in Clifton, supra, this Court stated that in sex offense cases, the
testimony of the victim alone can be sufficient to establish the elements of a sexual
offense, even when the State does not introduce medical, scientific, or physical
evidence to prove the commission of the offense. Furthermore, an explanation of
why delayed reporting occurs was provided in the instant matter. Nurse Troy
explained that, from her experience, most children do not want to talk about the
sexual abuse they have experienced. She testified that more shame and
embarrassment accompanied male victims and that the very nature of the sexual
abuse made males reluctant in reporting it. She also testified that male victims
have a more complicated time disclosing issues of abuse when they were abused
by another male. Again, we find that the jury made a credibility determination.
Defendant does not contest on appeal that the State failed to prove any
specified essential statutory elements of La. R.S. 14:42(A)(4). As such, we need
not address the evidence as it relates to each essential element. See State v. Nelson,
14-252 (La. App. 5 Cir. 3/11/15), 169 So.3d 493, 500 n.12, writ denied, 15-685
(La. 2/26/16), 187 So.3d 468; State v. Henry, 13-558 (La. App. 5 Cir. 3/26/14), 138
So.3d 700, 715, writ denied sub nom. State ex rel. Henry v. State, 14-962 (La.
23-KA-375 18 2/27/15), 159 So.3d 1064. Nevertheless, the State presented sufficient evidence
under the Jackson standard to establish the essential statutory elements of
aggravated rape. A.M. testified in detail to three incidents of rape. During the first
incident, A.M. testified that Defendant anally penetrated him twice with his penis,
and that Defendant performed oral sex on A.M.’s penis. During the second
incident, Defendant anally penetrated A.M. with his penis again. During the third
incident, Defendant performed oral sex on A.M.’s anus. While testifying to all
three incidents, A.M. recalled specific details like what he and Defendant were
wearing and the color of the blanket during the first occasion. A.M. recalled that
he was focusing on things like the carpet, the wall, and the stairs. A.M. was able to
recall the color of the stairs and the wall. Testimony at trial established that
A.M.’s date of birth was May 6, 2005. It is clear that A.M. was under the age of
13 at the time of all of the incidents of sexual abuse. Accordingly, we conclude
that, after viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable doubt that the evidence
was sufficient under the standard set forth in Jackson to support Defendant’s
conviction.18
Testimony of Anne Troy
Defendant argues that Nurse Troy was a “prosecution hack” and never met
with A.M. Defendant references La. C.E. arts. 702 and 705(B) without making
specific arguments. Instead, Defendant again raises his allegations that the case
lacked corroboration and questions the victim’s credibility. Defendant also argues
18 See this Court’s decision in State v. Banks, 17-358 (La. App. 5 Cir. 3/14/18), 241 So.3d 1240, 1249, writ denied, 18-586 (La. 3/25/19), 267 So.3d 599, cert. denied, --- U.S. ---, 140 S. Ct. 268, 205 L.Ed.2d 140 (2019) (where this Court found sufficient evidence supported a conviction for aggravated rape of a child under the age of 13. The victim, the defendant’s daughter, testified that the defendant forced her to engage in vaginal intercourse with him on her tenth birthday. Despite the three-year delayed disclosure, to which an expert testified was normal in child sex cases, this Court found that the victim was consistent as to the details of the rape. This Court stated that it would not reweigh the credibility of a witness.).
23-KA-375 19 that Nurse Troy should not have been allowed to testify because she never met
with, examined, or interviewed A.M.
On July 29, 2022, the State filed State’s Notice Pursuant to Article 719,
informing the defense that it intended to call Nurse Troy as an expert. The notice
included her curriculum vitae and stated that Nurse Troy would testify to her
knowledge regarding “general child sexual abuse, specifically addressing issues of
delayed disclosure and the affect sexual abuse may have on children concerning
delayed and partial disclosure.” After Nurse Troy testified as to her qualifications
at trial, the State offered her as an expert in child abuse and child abuse pediatrics.
Defense counsel had no questions for Nurse Troy with regard to her qualifications.
The trial court accepted Nurse Troy as an expert in the aforementioned fields. The
record does not indicate that defense counsel objected to Nurse Troy’s acceptance
as an expert.
“An irregularity or error cannot be availed of after a verdict unless it was
objected to at the time of occurrence.” La. C.Cr.P. art. 841(A). In order to seek
appellate review of an alleged trial court error, a party must make a
contemporaneous objection, and he must state the grounds for that objection. As
such, we find that this error was not properly preserved for review. See State v.
Williams, 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 838, writ denied, 21-
316 (La. 5/25/21), 316 So.3d 2 (where this Court found that the defendant failed to
preserve for appellate review a police chief’s classification as an expert when he
made no objection to the classification at trial); State v. Gonzalez, 15-26 (La. App.
5 Cir. 8/25/15), 173 So.3d 1227, 1235-36 (where this Court found that the
defendant waived his appellate challenge to the admission of expert testimony
where the defendant’s counsel expressly stipulated to the qualifications of the
State’s witness to testify as an expert on the matter, and the defendant otherwise
failed to object to the testimony regarding delayed disclosure).
23-KA-375 20 Newly Discovered Evidence
Defendant argues that the verdict was in error because the jurors were not
aware of A.M.’s receipt of the “U” Nonimmigrant status certification nor A.M.’s
mother’s immigration status/benefit. Defendant avers that Nurse Troy could have
testified as to this in regards to her testimony on “secondary gains.” The record
indicates that A.M. did not receive the certification from the State until he
requested it following the trial. With regard to A.M.’s mother’s immigration
status, the trial court specifically ruled that it would not allow the State or defense
to question her about it because it was not relevant. Defense counsel did not object
to this ruling. See State v. Lyons, 01-719 (La. App. 5 Cir. 11/14/01), 802 So.2d
801, 806 (where this Court found that the defendant failed to preserve for appellate
review witness testimony that he alleged to be irrelevant. This Court found that the
defendant failed to lodge a contemporaneous objection to the portion of the
witness’ testimony that he was now challenging on appeal.). Accordingly, we find
that Defendant’s assignment of error lacks merit.
Errors Patent Review
The record was reviewed for errors patent according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). The following errors were found.
The record reflects that the trial court failed to inform Defendant of the sex
offender registration requirements in accordance with La. R.S. 15:540, et seq.
Defendant’s conviction of aggravated rape, in violation of La. R.S. 14:42, is
defined as a sex offense under La. R.S.15:541(24). La. R.S. 15:542 outlines the
mandatory registration requirements for sex offenders. La. R.S. 15:543(A)
requires the trial court to notify a defendant charged with a sex offense in writing
of the registration requirements of La. R.S. 15:542.
This Court has recognized that the trial court’s failure to provide the
23-KA-375 21 notification constitutes an error patent and warrants a remand for written
notification, even where a life sentence has been imposed. See State v. Doucet, 17-
200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598, 609-10, writs denied, 18-77 (La.
10/8/18), 253 So.3d 789, and 18-196 (La. 11/5/18), 255 So.3d 1052, cert. denied, -
- U.S. ---, 139 S.Ct. 2676, 204 L.Ed.2d 1079 (2019). Accordingly, we remand this
case to the trial court with instructions to the trial judge to inform Defendant of the
registration requirements for sex offenders by sending appropriate written notice to
Defendant and to file written proof in the record that Defendant received such
notice. See also State v. Baskin, 15-704 (La. App. 5 Cir. 3/30/16), 188 So.3d 470,
475, writ denied, 16-833 (La. 4/24/17), 220 So.3d 741 (where this Court stated that
the record indicated that the trial judge did not provide written notification of the
registration requirements. This Court remanded the matter and ordered the trial
court to inform the defendant of the registration requirements of La. R.S. 15:542
by sending appropriate written notice to him within ten days of the rendition of its
opinion and to file written proof in the record that the defendant received such
notice.)
Additionally, the uniform commitment order (“UCO”) fails to include as a
“Sentence Condition” pre-printed on the form that Defendant shall comply with the
Sex Offender Registration. The UCO specifically contains an unchecked box next
to a statement that Defendant shall comply with these requirements. We instruct
the trial court to correct the UCO to reflect that Defendant shall comply with the
sex offender registration statute. We further direct the Clerk of Court for the 24th
Judicial District Court to transmit the corrected UCO to the appropriate authorities,
in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections’
legal department. See Chinchilla, supra and State v. Carriere, 19-366 (La. App. 5
Cir. 12/26/19), 289 So.3d 149, 153 (wherein this Court remanded the matters for
the trial court to correct the UCOs to reflect that the defendant shall comply with
23-KA-375 22 the sex offender registration requirements).
DECREE
For the foregoing reasons, we affirm Defendant’s conviction for first degree
rape of a juvenile under the age of 13 and life sentence. We remand the matter
with instructions expressed in this opinion.
AFFIRMED; REMANDED WITH INSTRUCTIONS
23-KA-375 23 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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