State v. Sepulvado

359 So. 2d 137
Supreme Court of Louisiana·Decided May 22, 1978·No. 61216·Published·Cited by 67 cases

Opinion

359 So.2d 137 (1978)

STATE of Louisiana
v.
Frankie SEPULVADO.

No. 61216.

Supreme Court of Louisiana.

May 22, 1978.

*138 Mark H. Kramer, as Public Defender for Sabine Parish, Leesville, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.

MARCUS, Justice.

Frankie Sepulvado was indicted for the crime of carnal knowledge of a juvenile in *139 violation of La.R.S. 14:80.[1] After trial by jury, he was found guilty as charged and was sentenced to serve three and a half years at hard labor. On appeal, defendant relies on nine assignments of error for reversal of his conviction and sentence.[2]

FACTS

Four years prior to the commission of the present offense, defendant and the victim became acquainted while attending a local high school. During the early morning hours of April 2, 1977, defendant, who was then eighteen years one month old, met with the unmarried fifteen-year nine-month old victim who had slipped away from her home, and had sexual intercourse with her with her consent in Sabine Parish. On the evening of that same day (April 2), the victim again left home and met defendant at which time they travelled to Texas where they lived together for two weeks. Intending to get married, they returned to their respective homes in Sabine Parish. Subsequently, defendant was charged with the instant crime of carnal knowledge of a juvenile committed in Sabine Parish on or about April 2, 1977.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a mistrial urged prior to the prosecutor's opening statement. The motion was grounded on the claim that the trial judge improperly granted a continuance after trial had commenced.

Defendant's contention is without merit. A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced. La.Code Crim.P. art. 708. A jury trial commences when the first prospective juror is called for examination. La.Code Crim.P. art.761. In the instant case, the record reveals that, after the jury had been selected and sworn and, therefore, after trial had commenced, the trial judge ordered a recess for a period of two days so that a defense witness, who had been personally served with a subpoena but had failed to appear at trial, could be attached and brought to court. Defense counsel consented to the granting of the recess. In view of the fact that defendant consented to the recess which had been ordered for his benefit to assure the attendance at trial of a defense witness, defendant has no cause to complain. Moreover, there is no showing of any prejudice resulting from the recess. Hence, the trial judge did not err in denying defendant's motion for a mistrial.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in permitting the state to question the victim as to acts of sexual intercourse with defendant other than that with which defendant was charged. He argues that this constituted evidence of other crimes which was not admissible.

Defendant was charged with committing the crime of carnal knowledge of a juvenile in Sabine Parish on or about April 2, 1977. On direct examination, the victim testified that on Saturday night (April 2), she had left home and met defendant at which time they travelled to Texas where they remained two weeks. They then returned to Sabine Parish because they wished to marry. The victim was asked if she had engaged in sex with defendant on the night she left with him for Texas. Without objection, she responded that she had had sex with defendant that night in Texas. The victim also testified that she had engaged *140 in sex with defendant in Sabine Parish during the early morning hours of April 2, 1977. Thereupon, the district attorney asked: "But you had sex relations with him subsequent to that also, did you not?" The victim replied in the affirmative. Defense counsel objected for the first time. The objection was overruled.

La.Code Crim.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to "at the time of occurrence." In the instant case, defendant's objection to the victim's testimony regarding acts of sex with defendant other than that with which he was charged came too late. The victim had previously testified, without objection, that she engaged in sex with defendant in Texas on the night after she had sex with him in Sabine Parish. Hence, defendant may not avail himself of the alleged error on appeal. La.Code Crim.P. art. 841; State v. Hillman, 298 So.2d 746 (La.1974); State v. Kelly, 262 La. 143, 262 So.2d 501 (1972). Moreover, after defendant's untimely objection, the only further reference to sexual relations with defendant other than the crime charged was the testimony of the victim on redirect that during their two-week stay in Texas she and defendant had lived together and any sexual relations in which she engaged while in Texas would have been with defendant.

Assignment of Error No. 2 has no merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in permitting Dr. C. E. Poimbeouf to express an opinion as to whether the victim had engaged in sexual intercourse. He argues that the expert witness possessed insufficient qualifications to express an opinion in this specialized field.

La.R.S. 15:466 sets forth the guidelines for the qualification of expert witnesses:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

We have consistently held that the competency of an expert witness is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Lewis, 353 So.2d 703 (La. 1977); State v. Gray, 351 So.2d 448 (La. 1977); State v. Madison, 345 So.2d 485 (La. 1977); State v. Marks, 337 So.2d 1177 (La. 1976); State v. Vassel, 285 So.2d 221 (La. 1973). The record reflects that Dr. Poimbeouf, an experienced physician engaged in general medicine and practice, was the parish deputy coroner for several years prior to his examination of the victim. He had previously served as the parish coroner for six years and possessed medical training and experience in the fields of obstetrics and gynecology. Based on the foregoing facts, we do not consider that the trial judge abused his discretion in permitting the witness to express an opinion as to whether the victim had engaged in sexual intercourse.

Assignment of Error No. 3 lacks substance.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in permitting Mrs. Dewitt Sepulvado, the mother of the victim, to testify at trial. He argues that her testimony was irrelevant.

On direct examination, Mrs. Sepulvado testified that her daughter was born on July 2, 1961, and that most of the information contained in her daughter's birth certificate, which had previously been introduced at trial, had been su

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