State v. Ohrberg

448 So. 2d 1316
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1984
Docket83 KA 0977
StatusPublished
Cited by11 cases

This text of 448 So. 2d 1316 (State v. Ohrberg) 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. Ohrberg, 448 So. 2d 1316 (La. Ct. App. 1984).

Opinion

448 So.2d 1316 (1984)

STATE of Louisiana
v.
George E. OHRBERG.

No. 83 KA 0977.

Court of Appeal of Louisiana, First Circuit.

February 28, 1984.
Rehearing Denied April 3, 1984.

*1318 William J. Knight, Asst. Dist. Atty., Franklinton, for State.

Clayton S. Knight, Franklinton, for defendant.

Before PONDER, WATKINS and CARTER, JJ.

CARTER, Judge.

This criminal appeal arises from the conviction of George E. Ohrberg of indecent behavior with a juvenile, LSA-R.S. 14:81. After waiving trial by jury, the defendant was tried by a judge alone. After having been found guilty as charged, defendant was sentenced to serve five (5) years at hard labor and to pay a fine of $2,000.00 and, in default of payment of fine, to serve six months in jail. Defendant's sentence of confinement at hard labor was suspended, and defendant was placed on supervised probation for a period of five years with the following special conditions: (1) to pay the fine within six months of the date of sentencing; (2) to perform thirty (30) days of community service work under the designated probation officer, to be approved by the court; and, (3) to attend a mental health clinic for evaluation and treatment. Defendant appeals his conviction alleging eight assignments of error.

FACTS

The victim, a nine-year old female child, testified at trial that on several occasions from December 1981 through June 1982, at times when defendant's wife was not at home, defendant made the victim take off her clothes, fondled her private parts, and otherwise sexually molested her. This nine-year old child was a neighbor of defendant and his wife in a trailer park, and the child had free access in and out of defendant's home. She would visit with the defendant and his wife often after school and sometimes on weekends. During the month of June 1982, in response to questioning, the victim told her aunt of these practices, and defendant's arrest followed.

ASSIGNMENTS OF ERROR

Defendant-appellant, George Ohrberg, relates the following assignments of error:

1. The trial judge committed error when he overruled defendant's objection to the state proceeding to trial without having furnished specific answers to defendant's motion for bill of particulars.
2. The trial court erred in allowing the child-victim who is under twelve years of age to testify, not only due to the age of the child, but also because of intelligence and the inability of the child to distinguish between right and wrong.
3. The trial judge erred in overruling defendant's objections to testimony of "Aunt Dot" as the same was hearsay.
4. The trial judge erred in allowing Officer McNish to testify pertaining to the age of defendant as the state had not revealed the same in pre-trial discovery.
5. The trial judge erred in allowing Officer McNish to testify as to the age of defendant with information being taken from a computer print-out.
6. The trial judge erred in denying defendant's motion for acquittal.
7. The trial judge erred in denying defendant's motion for new trial.
8. The trial judge erred in finding the essential elements of the crime as charged had been proven by the state.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred when it overruled defendant's objection to the state proceeding to trial without supplying specific answers to defendant's motion for bill of particulars. Defendant argues that he was denied his constitutional right, under LSA-Const. Art. 1, § 13, to prepare a defense because the state was *1319 not required to expand the general charges set forth in the bill of indictment by disclosing specific dates, times and places of specific acts of indecent behavior with a juvenile.

The record discloses that defendant's original request for discovery by filing a bill of particulars was not answered by the state. Defendant then requested a hearing to require the state to answer his interrogatories. The trial judge issued an order requiring the state to answer, and, in response thereto, the state made available to defendant and his counsel its entire file on defendant. On the date of trial, defendant again reiterated its request for specific answers to its interrogatories on its motion for bill of particulars, arguing that defendant could not adequately prepare his defense. The trial judge overruled defendant's objection and proceeded to trial.

The scope of the bill of particulars rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion and prejudice to defendant. State v. Womack, 283 So.2d 708 (La.1973).

The purpose of a bill of particulars is to inform defendant about the nature and cause of the charge against him; it is not a method for defendant to obtain the state's evidence. State v. Huizar, 414 So.2d 741 (La.1982). The state is not required to open its files to the accused. State v. Loyd, 425 So.2d 710 (La.1982). Nor is the state required to advise defendant of the specific dates on which lascivious conduct allegedly occurred. State v. Case, 357 So.2d 498 (La.1978).

The state argues in brief that it fulfilled its obligation under LSA-C.Cr.P. art. 484[1] when it turned over to defendant's counsel the state's entire file on defendant.

We agree. Although the state did not inform defendant of the exact time and manner of the alleged criminal acts, the state's amended answer to defendant's motion for bill of particulars (which allowed defense counsel to inspect, review, and photocopy the state's entire case file) was specific enough to enable defendant to identify the alleged criminal transactions and to prepare a defense. Cf. State v. Atkins, 360 So.2d 1341 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402, rehearing denied, 442 U.S. 935, 99 S.Ct. 2871, 61 L.Ed.2d 305 (La.1979).

Under these circumstances, no prejudice resulted since all facts, information, and documents gathered by the state in preparation for trial were available to defense counsel. We find no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 2

Defendant complains that the trial court erred in allowing the victim, a child of less than 12 years of age, to testify, arguing that the child was too young to be a competent witness and lacked sufficient intelligence to be able to distinguish between right and wrong. At the time of trial, the victim was 10 years of age.

LSA-R.S. 15:469 provides as follows:

"§ 469. Understanding as test of competency; child under twelve years
Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness."

*1320 The trial judge has wide discretion in determining the competency of witnesses under 12 years of age. State v. Arnaud, 412 So.2d 1013 (La.1982).

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Bluebook (online)
448 So. 2d 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ohrberg-lactapp-1984.