State v. Rogers

223 So. 3d 1237, 2017 WL 2665125, 2017 La. App. LEXIS 1131
CourtLouisiana Court of Appeal
DecidedJune 21, 2017
DocketNo. 51,449-JAC
StatusPublished

This text of 223 So. 3d 1237 (State v. Rogers) 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. Rogers, 223 So. 3d 1237, 2017 WL 2665125, 2017 La. App. LEXIS 1131 (La. Ct. App. 2017).

Opinion

BLEICH, J. (Pro Tempore)

| iThis appeal arises from the Second Judicial District Court for the Parish of Jackson, State of Louisiana, wherein the trial court ordered Lawrence Rogers to submit to DNA testing in connection with Tiffany Thompson’s petition to establish paternity of her minor child. For the following reasons, we affirm the judgment of the trial court.

FACTS

On January 8, 2016, the Jackson Parish District Attorney’s Office filed an action to establish paternity in accordance with La. R.S. 46:236, et seq. It requested Lawrence Rogers submit to blood testing in order to confirm if he is the biological father of Tiffany Thompson’s son, T.A.T., born March 29, 2006. In the supporting paternity affidavit, Thompson averred the following: she told Rogers he was the father of the child; the’ child resembled Rogers; no other man was listed as the father on the child’s birth certificate; and, she had not had sexual intercourse with any man other than Rogers during the time 30 days before or after conception.

On February 26, 2016, the parties came before a Jackson Parish hearing officer. Rogers refused DNA testing and requested a show cause hearing, which immediately followed. During the hearing, Thompson stated that she was working for Rogers and engaging in a sexual relationship with him when she became pregnant. Although Rogers corroborated that Thompson worked for him in 2006, he denied ever having sexual intercourse with her. In support of her claim that T.A.T. resembles Rogers, two recent photographs of the child were entered into evidence without objection. At the conclusion of the hearing, the matter was taken under advisement and | Peach party was given seven days to submit memoranda containing any additional arguments or evidence.

After considering the testimony and supplemental memoranda, the hearing officer issued an order for Rogers to submit to DNA testing on one of two dates in April 2016, In response, Rogers filed a notice of his intention to seek a supervisory writ and emergency stay of the proceeding. The trial court granted Rogers’ request, and this Court declined to consider the writ.1 Subsequently, the trial court issued a final judgment incorporating the hearing officer’s recommendations and requiring Rogers submit to DNA testing in September 2016. Rogers filed this suspen-sive appeal.

DISCUSSION

In his appeal, Rogers urges a single assignment of error. He argues the trial court erred in finding the state presented sufficient evidence to establish a reasonable possibility of paternity, because it based its decision solely on the uncorroborated testimony of Thompson. Rogers further argues that an order requiring DNA testing is a search and seizure under the Fourth Amendment of the United States Constitution and violates his constitutional right to privacy. Additionally, Rogers argues that since the state failed to produce the only witness mentioned by Thompson who might corroborate her story, he is entitled to a presumption that the witness’s testimony would be adverse to the state. We disagree.

The Uniform Act on Blood Tests to Determine Paternity (La, R.S. 9:396, et seq.) provides that in any civil action in which paternity is a relevant fact, the trial [1239]*1239court may order the mother, child, and alleged father |sto submit to the collection and testing of blood or tissue samples. La. R.S. 9:396(A)(1). When a party to a contested paternity action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the trial court can determine whether there is sufficient evidence to establish a prima facie case warranting the issuance of a court order for blood testing. In the Interest of the Minor Child, J.M., 590 So.2d 565 (La. 1991); State, Dep’t of Soc. Servs., Office of Family Support v. Williams, 605 So.2d 7 (La. App. 2 Cir. 1992). In the show cause hearing, before an order for blood testing is issued, the moving party must show that there is a reasonable possibility of paternity. In Interest of J.M., supra. If any party refuses to submit to such tests, the trial court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require. La. R.S. 9:396(A)(2).

In State v. Williams, supra, a petition filed on behalf of the minor child alleged Williams was the child’s biological father. In his answer, Williams admitted to engaging in sexual intercourse with the mother on two occasions, but denied paternity and refused to voluntarily submit to blood testing. At that show cause hearing, the state presented a friend of the mother who testified she had knowledge of the relationship between Williams and the mother, and witnessed Williams take her on dates and pick her up from work. The trial court ruled the state failed to establish a prima facie case warranting the issuance of an order for blood testing based on the fact that the mother’s husband was listed as the presumptive father on the child’s birth certificate, and the mother admitted to other sexual partners around the time she became pregnant. The state appealed, and the Williams court reversed the trial court, finding the concept of dual paternity allows for La suit against an alleged biological father even if the legal father is already providing support. Further, the state successfully proved a reasonable possibility of paternity based on the testimony; therefore, the trial court’s judgment was vacated, and Williams was ordered to submit to blood testing. Id. at 9.

In State v. Smith, 605 So.2d 222 (La. App. 2 Cir. 1992), a petition to establish paternity was filed. The mother claimed Smith was the father, although Smith denied ever having sexual intercourse with the mother. Nonetheless, the trial court ordered Smith to submit to blood testing. On appeal, Smith argued that an unfavorable inference should result from the state’s failure to call witnesses to substantiate the mother’s claim. The Smith court stated:

We recognize that as a general rule the failure to produce a witness who has special knowledge essential to a party’s cause, when such a witness is available and under a party’s control, raises a presumption that the witness’s testimony would be detrimental to that party’s cause. However, in this case certain individuals to whom [the mother] referred in her testimony did not have knowledge essential to the state’s case. They were not witnesses to the actual sexual relationship between [the mother] and Mr. Smith. Furthermore, the record does not indicate that these individuals were more available to the state than to Mr. Smith, and there is no indication that any of these individuals were under the state’s control. Accordingly, no unfavorable inference attached in this case.

State v. Smith, supra at 225. (Internal citations omitted.)

Here, Rogers argues that in order to prove a reasonable possibility of paternity, the state must have some corroborating evidence beyond Thompson’s claim that he [1240]*1240is the father. Thus, we are called to determine if a mother’s allegations of a sexual relationship, without some corroboration, can establish a reasonable possibility of paternity.

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Related

In Interest of JM
590 So. 2d 565 (Supreme Court of Louisiana, 1991)
State v. Smith
605 So. 2d 222 (Louisiana Court of Appeal, 1992)

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Bluebook (online)
223 So. 3d 1237, 2017 WL 2665125, 2017 La. App. LEXIS 1131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rogers-lactapp-2017.