State v. F.A.R.

568 So. 2d 238, 1990 La. App. LEXIS 2185
CourtLouisiana Court of Appeal
DecidedOctober 3, 1990
DocketNo. CR89-988
StatusPublished
Cited by3 cases

This text of 568 So. 2d 238 (State v. F.A.R.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. F.A.R., 568 So. 2d 238, 1990 La. App. LEXIS 2185 (La. Ct. App. 1990).

Opinion

KNOLL, Judge.

This is the second time that a panel of this court has reviewed F.A.R., Jr.’s conviction on five counts of attempted indecent behavior with a juvenile, violations of LSA-R.S. 14:27 and 14:81. In the first instance, we upheld the trial court’s granting of a new trial because the testimony of the juvenile victim, defendant’s adopted child, was presented to the jury via closed circuit television. 533 So.2d 1071 (La.App. 3rd Cir.1988). On re-trial defendant, after waiving a jury, was again found guilty of five counts of attempted indecent behavior with a juvenile. Following a presentence investigation, the sentencing court ordered that defendant serve three and one-half years at hard labor on each count, the first three counts to run consecutively, and the last two to run concurrently. Defendant appeals his convictions and sentences, asserting three assignments of error.

EVIDENTIARY QUESTION

Defendant contends that the trial court erroneously admitted Exhibit S-3, an in globo exhibit comprised of Dr. Graciano Sison’s office notes, during the testimony of another physician, Dr. Alphonso Pacheco. When the State offered the in globo evidence, defendant objected, contending that the exhibit constituted hearsay evidence and that the State failed to qualify the exhibit under any exception to the hearsay rule.

From the outset, we must correct a factual misapprehension in defendant’s argument. Defendant is incorrect in his assertion that Dr. Sisón did not testify at the second trial. Although Dr. Sisón was unavailable to testify at defendant’s original jury trial, the record is clear that Dr. Sisón testified at defendant’s second trial. TR. 739 ff.

S-3 reflects that Dr. Sisón examined the juvenile victim in 1982, and requested a laboratory report from a gram stain on a yellowish discharge that was obtained from the juvenile victim’s vaginal opening. The lab report revealed “intercellular gram-negative diplococci bacteria”; the bacteria was not cultured for conclusive proof of the existence of gonorrhea.

At defendant’s re-trial, Dr. Pacheco, who testified prior to Dr. Sisón, reviewed Dr. Sison’s notes and findings, and opined that the juvenile victim tested positive for gonorrhea in 1982.

We find, after carefully reviewing the record of this matter, that the trial court erroneously admitted Dr. Sison’s records at that point during the trial; certainly, those records were hearsay and no exception was shown to the hearsay rule. Nevertheless, a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused. LSA-C.Cr.P. Art. 921. Moreover, an error is harmless if there is little likelihood that it would have changed the result. State v. Ferdinand, 441 So.2d 1272 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1233 (La.1984). Even though we find that the exhibit was improperly admitted into evidence during Dr. Pacheco’s testimony, we find for reasons stated hereafter that the incorrect eviden-tiary ruling constituted harmless error.

Initially, we find that the trial court’s ruling on the admission of this- evidence was harmless because it is clear that the trial court gave no evidentiary weight to Dr. Pacheco’s testimony, and thus did not utilize his testimony in its assessment of defendant’s guilt. See State v. McKethan, 459 So.2d 72 (La.App. 2nd Cir.1984). In its oral reasons issued at the conclusion of defendant’s bench trial, the trial court stated:

“To be perfectly frank with you, I don’t believe much of anything that Dr. Pacheco says at this point because he, either he doesn’t pay any attention at all to his records or he intentionally misled the court. In either case I found, find clearly specific grounds to preclude my believing anything that the man says.”

Next, any misapprehension which Dr. Pacheco’s testimony may have caused was cleared up when Dr. Sisón testified. Dr. Sisón tempered Dr. Pacheco’s opinion, testifying that the presence of intercellular [240]*240gram-negative diplococci bacteria is suggestive of a sexually transmitted disease. Dr. Sisón further stated that he did not order a bacterial culture, which would have been conclusive proof of the existence of gonorrhea, because he thought the juvenile victim had never been sexually active; if he had suspected any sexual activity, he would have ordered a culture. Defendant did not cross-examine Dr. Sisón.

This assignment of error is without merit.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the trial testimony, was insufficient to support his conviction on five counts of attempted indecent behavior with a juvenile. In particular, defendant contends that the State failed to prove beyond a reasonable doubt that he committed, or attempted to commit, a lewd or lascivious act upon the person of the victim, a necessary element under LSA-R.S. 14:81.

On appellate review of the sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the evidence could support a finding of guilty beyond a reasonable doubt. The relevant question on appellate review is whether, 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 beyond a reasonable doubt. State v. Senegal, 542 So.2d 792 (La.App. 3rd Cir.1989). It is,,the role of the fact finder to weigh the respective credibilities of the witnesses and appellate courts will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the standard of review presented in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

After thoroughly reviewing the trial testimony, we adopt with approval the trial court’s well expressed summary of the evidence as follows:

“The State has charged that these violations [five counts of attempted indecent behavior with a juvenile, violations of LSA-R.S. 14:27 and 14:81] occurred on five separate occasions, between October 21, 1980, and July 16, 1985, here in La-Salle Parish, Louisiana....
[The juvenile victim] ... was born on October 21, 1970, and had by previous orders of this court been removed from the [family] ... home when these allegations arose. [The juvenile victim] ... was 16 at the time she was removed. She was first examined by Dr. Milton Rhea, an Alexandria psychologist, on June 9, 1987. Dr. Rhea also saw [the juvenile victim] ... on two other occasions, being July 3, 1987, and July 14, 1987, and he concluded that she was a severely emotionally disturbed child who felt alone, intimidated and had suffered psychological trauma for a long period of time.
[The juvenile victim] ... presented herself with an infantile voice and almost prenatal body language, according to Dr. Rhea, with much depression. Dr. Rhea did not feel that [the juvenile victim’s] ... allegations were contrived and found no secondary gain to her story to him; however, she obviously had difficulty with time, place and order of events. [The juvenile victim] ... related to Dr. Rhea five occasions of sexual abuse; all of them having occurred numerous years before her evaluation. Although Dr.

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568 So. 2d 238, 1990 La. App. LEXIS 2185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-far-lactapp-1990.